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Jessica M. v. Berryhill

United States District Court, D. Rhode Island

November 7, 2018

JESSICA M., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jessica M. is a young woman who claims that she has been unable to work since November 30, 2011, through her date last insured (March 31, 2016), due to the extreme fatigue caused by an autoimmune disorder variously diagnosed as lupus or Sjögren's syndrome, as well as by an array of mental impairments. Overlaying this complex medical picture is Plaintiff's ongoing struggle with alcohol abuse. Despite the complexity of the medical history, the gaps in the medical evidence, and the lack of any opinion evidence (other than treating sources and a non-examining source whose opinions were afforded little weight), the Administrative Law Judge (“ALJ”) performed his own interpretation, determined that Plaintiff suffered from the severe impairments of lupus, Sjögren's syndrome, posttraumatic stress disorder (“PTSD”), attention deficit disorder (“ADD/ADHD”) and alcohol abuse, but retained the residual functional capacity (“RFC”)[1] to perform sedentary work with additional limitations.

         Whether error taints the ALJ's finding that “claimant was not under a disability” is now before the Court on Plaintiff's motion to reverse the Commissioner's decision denying her Disability Insurance Benefits (“DIB”) application under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”). 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, I find that the ALJ's findings rest on improper lay judgments regarding matters that are well beyond the ken of commonsense and, therefore, are not supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion for Reversal of the Disability Determination of the Commissioner of Social Security (ECF No. 13) be GRANTED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 15) be DENIED.

         I. Background

         Beginning when she was teenager, Plaintiff appears to have consistently worked at times, for example at McDonald's when she was sixteen, culminating in work during college as an EMT[2] until she stopped due to extreme fatigue symptoms in November 2011 at the age of twenty-four. After moving with her husband to St. Louis, she struggled to finish college, but despite overwhelming fatigue, she completed her nursing degree in early 2012.

         Treating records during the period from the date of onset through March 2014 are focused on the diagnosis and treatment of autoimmune disorder. In March 2012, based on laboratory testing, as well as symptoms that included extreme fatigue, sleeping eighteen hours per day with “compulsive episodes which force her to go to sleep, ” Plaintiff was diagnosed at the Washington University School of Medicine with an unspecified autoimmune disorder and treatment was initiated. Tr. 274-75. In August 2012, lupus was diagnosed. Tr. 399. In May 2013, Plaintiff was referred for a sleep study after a preliminary evaluation of abnormal sleepiness, although the sleep study itself does not appear to be in the record. Tr. 401-05. In March 2014, symptoms of fatigue, brain fog and muscle weakness over the prior two years were reported and a rheumatologist diagnosed Sjögren's syndrome. Tr. 417, 421. Consistently during this period from early 2012 through March 2014, the array of professionals who examined Plaintiff noted her extreme fatigue and linked it to the autoimmune disorder, which was confirmed by laboratory testing. Also mentioned are various mental impairments, including depression, anxiety and ADHD, which were treated with medication, but not by a medical professional specializing in mental health treatment.

         During the next period, from April 2014 through April 2015, there are no treating records.[3] Other references suggest that during this period, Plaintiff and her husband moved to Maryland and then separated, later divorcing. Tr. 58. One later record indicates that, during 2014, Plaintiff was drinking alcohol at a rate that she later described as “being at her worst . . . drinking a liter of vodka daily.” Tr. 464-65. Meanwhile, on May 4, 2014, Plaintiff filed her DIB application alleging disability since November 30, 2011. After Plaintiff failed to return forms to support her application by the fourteen-day deadline, her application was denied initially on July 24, 2014. The very next day, July 25, 2014, Plaintiff and her soon-to-be-estranged[4] husband filled in Function Reports and a Work History report, but it was too late. Because Plaintiff's application was processed through the experimental “Single Decision Maker” model, the administrative phase was closed with a finding of “not disabled” based on “failure to cooperate” on July 24, 2014. Plaintiff requested a hearing before an ALJ, but then waited almost two years before one was scheduled.

         Meanwhile, the treating record resumed in April 2015, by which time Plaintiff had moved back to Rhode Island and was divorcing and living with her mother. During this latter period, the record primarily reflects extensive outpatient mental health treatment at Lifespan, including a partial hospitalization at Rhode Island Hospital.[5] Throughout these treating records are repeated references to treatment for alcohol abuse disorder, sometimes described as being in remission and other times active, with at least one extended hospitalization for detox in September 2015.

         Some of the mental health treatment beginning in April 2015 through the date last insured is with a psychiatrist, Dr. Anthony Gallo, who saw Plaintiff approximately once a month. Most of it is with the therapist to whom Dr. Gallo referred Plaintiff, Deirdre A. Gale, MA, LMHC. Ms. Gale had weekly appointments with Plaintiff, occasionally less frequently. Over the period from intake to Plaintiff's date last insured, there are more than twenty such encounters. At each, Ms. Gale recorded objective mental status observations, which are consistently abnormal.[6] E.g., Tr. 607 (manner: withdrawn; affect: depressed; thought process: nonlinear, slowed; thought content: worthlessness, guilt, failure; suicidal ideation: passive; judgment: fair; memory: some long-term lapse; attention and concentration: poor). The Gale treating records include repeated references to Plaintiff's daily struggle to stay awake even for a few hours. E.g., Tr. 593 (treating goal set for Plaintiff to get up by 11 am and stay awake for twelve hours); Tr. 605 (Plaintiff getting up at noon and back in bed within one to four hours). The Gale treating notes also reflect the adverse impact of these observed symptoms on Plaintiff's ability to function. E.g., Tr. 468 (“consistent decompensation since [autoimmune] dx & increasing alcohol abuse as a coping mechanism . . . significant inability to attend ADLs and severe depression”). Consistent with these treating notes, Ms. Gale submitted an opinion in support of Plaintiff's application, which opines to significant impairment in the mental ability to do even unskilled work. Tr. 435-40.

         During this period, there are no records reflecting treatment for Plaintiff's autoimmune disorder, although the mental health records repeatedly mention Plaintiff's ongoing struggle with extreme fatigue, including her inability to stay awake for more than a few hours. Ms. Gale's notes reflect discussion with Plaintiff of her need to connect with a physician to address those symptoms. Finally, at the very end of the period, Plaintiff began to see Dr. Ronald Romano; however, there are no treating records reflecting this relationship. After Plaintiff's date last insured, Dr. Romano submitted an opinion in support of her DIB application. Tr. 442-45. Dated June 20, 2016, it confirms the diagnoses of autoimmune disorder based on laboratory test results, as well as anxiety and alcohol abuse, endorses chronic fatigue as a symptom and opines that Plaintiff would be “off-task” at least 15% of the time and cannot work at fast-paced tasks. Tr. 442-43, 445. The remainder of the form is not filled in.

         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)).

         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); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do previous work, or any other ...


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