United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
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”).
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”) to perform uncomplicated work at all
exertional levels, including her past work as a cleaner.
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.
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.
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.
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.
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.
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.
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,  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”).
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.
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 ...