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Natassja P. v. Berryhill

United States District Court, D. Rhode Island

November 19, 2018

NATASSJA P., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         I. Introduction

         Plaintiff Natassja P., now a woman of thirty, has struggled with cognitive impairment and obsessive compulsive disorder (“OCD”), including repetitive behaviors and rituals, since childhood. Prior to the current application, she had been found to be disabled and awarded benefits. In 2011 she was able to find a job cleaning a church, which she was able to do until 2014, when there was a change in personnel and she was asked to do “a lot more work” and to “do a bunch of different things.” Tr. 65. She stopped working on October 16, 2014, and applied for Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”).

         Plaintiff's current application is supported by two opinions from her treating psychiatrist (Dr. Gene Jacobs), an opinion from her treating therapist (Nicole Ford, LICSW), cognitive and other clinical testing performed by a psychologist (Dr. Susan Culbert) in connection with treatment, and an opinion from her primary care physician, Dr. Irene Chliwner. All opined to potentially disabling impairments and functional limitations; none opined to substance use disorder or to any impact on OCD caused by marijuana use; Ms. Ford and Dr. Jacobs expressly ruled out any contribution to Plaintiff's symptoms from “alcohol or substance abuse.” Despite these opinions, the Administrative Law Judge (“ALJ”) focused on stray record references to marijuana use, relied on a non-examining medical expert (Dr. Stuart Gitlow) whose opinion appears to rest solely on the lack of a “series of longitudinally negative urine drug tests, ” Tr. 88, and found that Plaintiff's primary severe impairment is not OCD, but rather “substance induced anxiety disorder with obsessive-compulsive symptoms, ” Tr. 22, in addition to borderline intellectual functioning. In further reliance on Dr. Gitlow's opinion that “the studies ha[ve] shown that about 80% of people who discontinue the marijuana use, their symptoms of anxiety and OCD falls into that domain, dissipate or markedly reduced, ” Tr. 88-89, the ALJ found that, while the limitations caused by OCD were so severe as to meet the criteria for Listing 12.06 (anxiety and obsessive-compulsive disorders), if all marijuana use were stopped, Plaintiff would recover the residual functional capacity (“RFC”)[1] to perform uncomplicated work at all exertional levels, including her past work as a cleaner.

         Plaintiff's motion to reverse the Commissioner's decision is grounded in her contention that the ALJ erred in determining that Plaintiff's marijuana use amounted to a “substance use disorder” that was a material factor contributing to Plaintiff's disability during the period in issue. 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 erred in failing properly to evaluate Plaintiff's use of marijuana as required by SSR 13-2p, 2013 WL 621536 (Feb. 20, 2013), leaving his RFC without the support of substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 9) be GRANTED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 11) be DENIED.

         II. Background

         I begin with a survey of the medical record focused on references to substance abuse, particularly the use of marijuana, and how it is addressed by treating providers.

         First up is Dr. Chliwner, the primary care physician. The earliest record is from March 2014, more than six months prior to when Plaintiff stopped working. Dr. Chliwner endorsed OCD as a diagnosed problem and recorded a history of no smoking, no alcohol and no illicit drugs. Tr. 327-28. In October 2014, Dr. Chliwner noted that Plaintiff was unable to pass the driver's test (“did not understand everything in driving manual”), as well as that she had been trying to work but “is having a hard time of it, is picking more.” Tr. 319. Through August 2016, Dr. Chliwner's treating notes consistently carry OCD as the principal diagnosis and rule out illicit drug use. See Tr. 428-29. No. need for drug testing or substance abuse treatment is ever noted.

         The first record from the licensed social worker, Ms. Ford, is dated October 28, 2014. Tr. 454. It assesses “symptoms of OCD” that “create intolerable anxiety.” Id. Ms. Ford's clinical interview included a “substance use screening”; she noted “none reported.” Tr. 456. Consistent with her opinion submitted in support of Plaintiff's disability application, Ms. Ford found cognitive limitations and unimproved chronic mental health symptoms that restricted the ability to function. Tr. 459, 464. Ms. Ford referred Plaintiff to psychiatric nurse practitioner Ryan Baxter, Tr. 457, and later to Quality Behavioral Health, Inc. (“QBH”), for a higher level of care for OCD and other mental health issues. Tr. 461. She did not diagnose substance use disorder nor did she suggest the need for substance abuse testing or treatment.

         Like the other treating sources, Nurse Baxter diagnosed OCD and depression. Tr. 337, 339. His December 2014 intake history reflects OCD behaviors that were exacerbated significantly while Plaintiff was trying to work. Tr. 339. Under the heading, “Substance use history, ” he noted, “some marijuana use, etoh occasional.” Tr. 341. Despite this notation, throughout the treating relationship, Nurse Baxter's primary diagnosis and the focus of treatment was OCD; he never diagnosed any substance use disorder, never recommended or ordered substance abuse testing and never suggested that Plaintiff should restrict the use of marijuana. Tr. 337-60, 436-47.

         In the summer of 2015, Plaintiff began treating at QBH, at first with Deborah Horwitz, PMHNP-BC, and Patricia Day, RN, LMHC, LCPD. Dr. Jacobs, a psychiatrist, appears to have taken over from Nurse Horwitz in the end of 2015. Over the almost two-year period from intake at QBH through the final appointments of record in the spring of 2017, these providers saw Plaintiff regularly for substantive treatment, with the focus on serious and debilitating cognitive issues and OCD symptoms. Dr. Jacobs ordered cognitive testing for treating purposes, which was done by psychologist Dr. Culbert. Tr. 500-01. The results confirmed significant cognitive limitations, including a full scale I.Q. of 62, as well as severe anxiety and depression. Tr. 499-501. Dr. Culbert also found that Plaintiff's effort, cooperativeness, and comprehension of instructions associated with the cognitive testing were all adequate. Tr. 500.

         Over the course of treatment at QBH, all three of its professionals consistently addressed whether there was substance use; all three consistently found that, apart from occasional alcohol use, it was not present. E.g., 402, 407, 416. For example, in August 2016, [2] Dr. Jacobs noted, “Mre ocd, occ si no plan no alcohol or marijuana.” Tr. 509. After the ALJ hearing in January 2017, at which the focus of this case shifted to Dr. Gitlow's opinion that marijuana abuse was material to Plaintiff's disabling OCD symptoms, Dr. Jacobs had Plaintiff screened for drugs (for the first time, as far as this record reveals) and the test was negative; Dr. Jacobs' notes reflect that he questioned her closely and she told him she had used marijuana “once in a blue moon.” Tr. 42. During these post-hearing appointments, with marijuana use ruled out by drug screens, the record continues to reflect objective observations of the effects of serious OCD. E.g., Tr. 54 (“hands are raw - sore & hands bleeding”).

         A handful of other references round out the field. In early 2015, Plaintiff saw a Dr. Stratton at Neurohealth for headaches; his social history includes “Marijuana use: *Admits.” Tr. 422. However, neither his assessments nor his treatment notes makes any mention of it; his notes do not suggest any link between the history of marijuana and the symptoms he was asked to treat. Tr. 423. When Plaintiff saw a nurse practitioner at the same practice almost two years later (but still before the Gitlow hearing), the notes say, “Marijuana use: *Denies.” Tr. 519. And when Plaintiff was seen for a cough in 2016, the physician assistant's history included the notation, “Illicit drugs: denies.” Tr. 493.

         To recap, despite evidence that treating providers directed significant attention to the possibility of substance abuse throughout the longitudinal treating record, there are only a handful of references to occasional (“some”) marijuana use, no treating source ever diagnosed substance use disorder and no treating source ever recommended either substance abuse testing or that the use of marijuana should be curtailed because it was adversely impacting what all treating sources acknowledged to be serious OCD symptoms. Dr. Jacobs signed two opinions reflecting his conclusion that Plaintiff's cognitive impairments, particularly her I.Q. of 62, left her “very impaired, ” while Ms. Ford's opinion focused on the significant limiting effects of OCD. Tr. 48, 391, 527. Dr. Chliwner focused on OCD and headaches, opining that anxiety caused the headaches and that OCD “interferes with any work.” Tr. 432-35. Yet both Jacobs opinions and the Ford opinion ...


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