United States District Court, D. Rhode Island
DERECK M. B., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.
This
case is before the Court on Plaintiff's motion to reverse
the Commissioner's decision, in which he argues that the
Administrative Law Judge (“ALJ”) erred in failing
to find that Plaintiff meets the impairment listings for
12.02, 12.04 and/or 12.06 and in finding that Plaintiff
retained the residual functional capacity
(“RFC”)[1] to engage in substantial gainful activity.
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 record, and having
considered a second round of briefing regarding the sit/stand
option, I find that the ALJ's findings are sufficiently
supported by substantial evidence and that her potential
error in rejecting the treating orthopedist's opinion
that Plaintiff is limited to jobs that permit him to sit or
stand at will has been waived and, in any event, is harmless.
Accordingly, I recommend that Plaintiff's Motion to
Reverse the Defendant's Final Decision without a Remand
for Rehearing or in the Alternative Reverse with a Remand for
Rehearing (ECF No. 18) be DENIED and Defendant's Motion
for an Order Affirming the Decision of the Commissioner (ECF
No. 20) be GRANTED.
I.
Background
Plaintiff
Dereck M. B. suffered a terrible workplace accident in
October 2011 when a truck on a lift under which he was
working fell and crushed him. The resulting “crush
injury” caused rib fractures, lumbar and thoracic
spinal fractures and bilateral iliac fractures, which were
initially treated during a week-long hospitalization
following which Plaintiff continued outpatient treatment and
physical therapy.
Because
the incident entitled Plaintiff to worker's compensation,
his file reflects both treatment and evaluation associated
with that claim. As pertinent here, Plaintiff underwent an
independent medical examination performed by orthopedist Dr.
Steven Blazar who opined on December 13, 2012, that Plaintiff
was partially disabled for worker's compensation purposes
in that he could perform modified light duty work, with
“alternating sitting and standing to his comfort
level.” Tr. 569-72. Also pertinent are Plaintiff's
encounters with the treating orthopedist, Dr. Randall
Updegrove, in 2012 and 2013; Dr. Updegrove opined that
Plaintiff was capable of light work that would “allow
him to sit and stand as tolerated.” Tr. 364. In
addition to physical treatment, Plaintiff also saw a
neuropsychologist, Dr. Francis Sparadeo, once in 2012 and
once in 2013. Tr. 347, 365. Based on an extensive clinical
evaluation, Dr. Sparadeo ruled out cognitive impairment, but
diagnosed depression and post-traumatic stress disorder; he
advised that Plaintiff's goal should be “gradual
return to work.” Tr. 347, 353, 365. Dr. Sparadeo
suggested medication for Plaintiff's mental health
impairments, but Plaintiff refused. Tr. 366.
On
October 23, 2012, Plaintiff applied for Disability Insurance
Benefits (“DIB”) under 42 U.S.C. § 405(g) of
the Social Security Act (the “Act”). The Social
Security Administration (“SSA”) expert physicians
examined the file, considered Dr. Updegrove's treating
opinion together with the balance of the treating record as
of the date of the review, and found Plaintiff capable of
light work. Tr. 112-13, 126-27. Two SSA expert psychologists
also examined the file and found that depression and anxiety
were both severe at Step Two, but that Plaintiff could
perform work involving simple to moderately detailed
instructions with only occasional direct dealing with the
general public. Tr. 110, 113-15, 124-25, 128-29.
From a
physical perspective, the non-examining sources (the SSA
expert physicians), the examining source (Dr. Blazar), and
the treating source (Dr. Updegrove) are all consistent - that
Plaintiff is capable of light work, with limitations. There
is no opinion evidence from any treating or examining source
establishing a more restrictive physical RFC. Although he did
not provide an RFC opinion, the testimony (presented at the
first hearing) of the medical expert, Dr. Stephen Kaplan, is
not inconsistent in that he opined based on a file review
that Plaintiff's accident did not result in “a lot
of displacement” and that such soft tissue damage as he
experienced “should . . . be resolved.” Tr. 96.
The Commissioner correctly points out that Plaintiff's
counsel did not ask Dr. Kaplan any questions, including that
he asked no questions to develop the record regarding the
potential for a limitation based on the need for a sit/stand
option.
From a
mental health perspective, beyond the two evaluative
appointments with Dr. Sparadeo, the medical record reflects
very little mental health treatment for Plaintiff's
diagnosed impairments of depression and PTSD. Nevertheless,
shortly before the first hearing, Plaintiff submitted a
“Psychiatric Review Technique”
(“PRT”) and an RFC opinion from a non- acceptable
medical source, licensed mental health clinician, Sallie
D'Agostino Pisaturo. Tr. 454, 468. As a treating source,
Ms. Pisaturo appears only once in the medical record as the
author of a “Psychological Report” dated October
4, 2013; she did not submit any treating records. Tr. 449-50.
In this report, she asserts that she had been seeing
Plaintiff for “weekly psychotherapy sessions” for
approximately two months. Contrary to Dr. Sparadeo, who
performed clinical testing and found no cognitive
impairments, Ms. Pisaturo's letter and opinions conclude
that the accident has “significantly interfered with
his cognitive ability . . . [and h]is memory and
organizational ability appear to be significantly
hampered.” Tr. 449; see Tr. 455 (checking
boxes for organic mental disorders). Ms. Pisaturo's
submissions in support of Plaintiff's application also
include her conclusion that he has had at least three
episodes of “decompensation . . . of extended
duration” and that his symptoms are so severe that he
meets the Listing criteria for 12.02 (organic mental
disorders), 12.04 (affective disorders), and 12.06
(anxiety-related disorders). Tr. 454, 464. No. episodes of
decompensation appear in the medical record.
Plaintiff
testified at the first hearing on February 26, 2014, along
with Dr. Kaplan, the medical expert, and a vocational expert
(“VE”). During the hearing, the first ALJ asked
the VE for jobs at the light and sedentary levels and also
asked how that job base would be eroded if the job was
“set up so that an individual can sit and stand while
performing” it; the first VE responded with specific
jobs, and opined that the sedentary unskilled jobs identified
would be eroded by a specified percentage for the sit/stand
option. Tr. 98-100. In his decision, the first ALJ rejected
the Pisaturo opinion because it came from a non-acceptable
source whose box-check opinions lacked the support of any
objective findings. Tr. 143. Relying on Dr. Kaplan and the
SSA non-examining sources, he found that Plaintiff retained
the RFC to perform light work, with postural limitations and
the mental capacity only for simple tasks with occasional
social interaction. Tr. 140. However, Dr. Updegrove's
opinion was not evaluated (nor was the Blazar opinion) and,
without explanation, no sit/stand option was included in the
RFC. Id.
On June
19, 2015, the Appeals Council vacated the first ALJ's
decision and remanded the matter because the first ALJ
improperly relied on Dr. Kaplan's testimony yet Dr.
Kaplan did not testify about RFC limitations; because the
first ALJ omitted Plaintiff's mental limitations from the
hypothetical propounded to the VE; and because the first ALJ
did not evaluate either the Updegrove opinion or the Blazar
opinion. Tr. 151-55. Indeed, although Dr. Blazar's
opinion was mentioned in the record, a copy of it was not in
the file as of the date of the first ALJ's decision.
On
remand, a new ALJ was assigned to the case, the Blazar
opinion was procured, and a second hearing was convened.
Plaintiff and a second VE testified. This time the ALJ
included mental health limitations as reflected in the
opinions of the SSA expert psychologists in the hypothetical
propounded to the VE. Tr. 67-69. In response, the VE
testified to the availability of essentially the same
unskilled jobs at the light and sedentary exertional levels
as were identified by the first VE, with a reduction in
numbers because of the mental health limitations.
Compare Tr. 98-100, with Tr. 67-69.
However, the second ALJ did not add to the hypothetical the
sit/stand option on which the first ALJ had asked the first
VE to opine.
In her
decision, the ALJ discussed at length the opinions of Drs.
Blazar and Updegrove, as directed by the Appeals Council. Tr.
16-17, 20. She found Plaintiff capable of light work with
additional limitations, such as the ability to lift only ten
pounds, to perform only simple tasks and to have only
occasional contact with the public. Tr. 16. She afforded
significant weight to the Updegrove/Blazar opinions, except
for the sit/stand option. Tr. 22-23. As to that, she afforded
minimal weight to the limitation that Plaintiff should work
at a job where he is able to sit/stand to his comfort level
because “it is not specifically defined and does not
set forth the maximum the claimant can do as required by a
residual functional capacity assessment.” Tr. 23. The
second ALJ also afforded little weight to the Pisaturo
opinions because they are conclusory and there are no
treating notes to support them, as well as because of their
inconsistency with the record as a whole. Id.
Ultimately, the ALJ found Plaintiff able to perform three
unskilled sedentary positions (assembler, hand packager and
production inspector) that exist in sufficient numbers in the
national economy; therefore, she held that he was not
disabled at any relevant period. Tr. 24-25.
By the
time of the second hearing, Plaintiff had stopped seeing Dr.
Sparadeo and was being seen only by an internist, Dr.
Charlene Ellsworth, who prescribed Vicodin and Adderall. Tr.
49-51. Plaintiff told Dr. Ellsworth he was doing volunteer
work and complained of anxiety and lack of focus and
determination, for which she prescribed Adderall and
Wellbutrin as a trial, but her mental status examination was
entirely normal. Tr. 558-60.
II.
Procedural History
Plaintiff's
original motion principally challenged the ALJ's
rejection of the Pisaturo finding that Plaintiff met or
equaled three mental health listings. He also argued that the
ALJ's RFC finding did not rely on Plaintiff's
testimony about the severity of his symptoms, as confirmed by
Plaintiff's continuing receipt of worker's
compensation benefits; that the ALJ did not take into account
the first VE's testimony; that the ALJ did not comply
with the Appeals Council remand order; and that the ALJ's
RFC strains credulity because the ALJ found Plaintiff capable
of light work but unable to perform prior work as a
short-order cook, a job that requires the ability to function
at the light exertional level. The Court's analysis of
these arguments in the context of the record resulted in the
tentative conclusion, now solidified into a recommendation,
that none is well founded for the reasons discussed
infra. However, in a phone conference with the
parties, the Court raised an additional issue based on a
sua sponte concern regarding the viability of the
ALJ's “good reason” for rejecting the
Updegrove treating opinion, confirmed by the Blazar examining
opinion, that Plaintiff's ability to work is limited by
his need for a sit/stand option “to his comfort
level.”
The
Court's concern may be briefly summarized. Both the
treating source, Dr. Updegrove, and the examining source, Dr.
Blazar, opined that Plaintiff was limited to light work that
allowed him to sit or stand at will. Such an option is
addressed in SSR 96-9p, 1996 WL 374185 (July 2, 1996), which
provides that an individual may need to “alternate the
required sitting of sedentary work by standing (and,
possibly, walking) periodically, ” eroding the range of
available unskilled sedentary work, with the extent of the
erosion depending on facts in the record with respect to the
frequency of the need to alternate sitting and standing and
the length of time needed to stand. Id. at *7. The
first ALJ asked the first VE about an at-will sit/stand
option as applied to the facts in the record of this case,
and the first VE found the framing of the limitation
sufficiently specific to be able to testify to specific
erosion percentages. Tr. 99-100. This testimony raises a
serious question regarding the viability of the second
ALJ's only reason for rejecting the Updegrove/Blazar
sit/stand option opinion - that the limitation lacked
specific definition to inform the RFC decision. And assuming
that this reason for rejecting this aspect of the
Updegrove/Blazar ...