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Glenford W. v. Berryhill

United States District Court, D. Rhode Island

February 8, 2019

GLENFORD W., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE

          REPORT AND RECOMMENDATION

         Plaintiff Glenford W. served in the United States Army, including active duty in Afghanistan, from 2010 through 2013. Since ending his deployment, he has suffered from service-related post-traumatic stress disorder, with depression and anxiety, and diffuse body pain that has been diagnosed as fibromyalgia. Although he has been deemed disabled by the Department of Veterans Affairs (“VA”), his third application for Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”) was denied based on the decision of an Administrative Law Judge (“ALJ”), who accepted his impairments but found that he retained the RFC[1] to perform simple light work in a stable environment with limited interactions with others. Before the Court is Plaintiff's motion to reverse the Commissioner's decision. Plaintiff contends that the ALJ erred in affording minimal weight to one VA treating source opinion, to the examining/file review opinions of two other VA sources, and to the examining opinions of a family practitioner, which were presented in support of his VA disability claim. Plaintiff also challenges the ALJ's evaluation of the limiting effects of fibromyalgia. 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 that error tainted the ALJ's reasons for affording minimal weight to the findings of the primary care treating physician, Dr. Raymond Lee, and to those of the VA examining/file reviewing psychologists, Dr. Rebecca Papas and Dr. William Haddad, but I also find that these errors are harmless. By contrast, I find no error in the ALJ's decision to discount the seriously flawed opinions of the non-VA examiner, Dr. Dawn Moten. With respect to fibromyalgia, I find that the ALJ appropriately followed the First Circuit's guidance in Johnson v. Astrue, 597 F.3d. 409, 412 (1st Cir. 2009), and that his assessment of the intensity and severity of Plaintiff's fibromyalgia symptoms is well supported by substantial evidence. Based on these findings, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 8) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 10) be GRANTED.

         I. Background

         A. Plaintiff's History

         After serving a one-year-long deployment in Afghanistan, Plaintiff, a “younger” person in the parlance of the Act, ended active duty in the Army in 2013, and joined the New York National Guard as an infantry team leader. Tr. 43, 55, 397. He continued serving until he was medically discharged in January 2017. Tr. 299. The record is unclear regarding what activities the National Guard position required, except that the file includes references to traveling to New York for training in June 2016. Tr. 440; see Tr. 492 (as of March 2016, “[h]e is in active guard service and going to school”). Plaintiff's only other post-Army work was a summer job as a camp counselor in 2014. Tr. 43-44. In the early years following his Army discharge, Plaintiff was diagnosed with post-traumatic stress disorder (“PTSD”); he also complained of hand, knee, spine and hip issues linked to strains that occurred during 2012 and 2013 while in service. Tr. 255, 1594. During 2016, Plaintiff went through the stress of a divorce and was awarded 50% custody of his two-year-old daughter, at the same time that he was a full-time college student. Tr. 41-42, 725. Also in 2015/2016, Plaintiff was diagnosed with fibromyalgia based on diffuse body pain and other diagnostic criteria. Tr. 1105. Plaintiff received treatment from the VA for all of his mental and physical symptoms.

         By the time of the ALJ's hearing in September 2017, Plaintiff was caring for his daughter three days a week, sometimes longer if his ex-wife was away, Tr. 742, and attending college full time. He had completed the sophomore year, mostly through on-line courses; he was studying business and doing well. Tr. 41-42, 491; see Tr. 45 (“I'm probably like a B student.”). As Plaintiff told the ALJ, “I like school. It keeps me busy, ” Tr. 46; Plaintiff also testified that he had no difficulty caring for his toddler, watching movies with her and taking her to a nearby park. Tr. 48. The record reflects that Plaintiff ran a 5k with his daughter in 2016, and “had a good time and hope to get out and do more things like that.” Tr. 441. In late November 2016, shortly before the period in issue, Plaintiff reported to treating sources that he was walking more and doing slow jogs. Tr. 652. Plaintiff drives independently, shops for food and children's items, handles his own finances, and goes to church. Tr. 315, 316.

         B. Procedural History

         Plaintiff's first DIB application was filed on August 6, 2015; it was denied on reconsideration on October 5, 2015. His second DIB application was filed on June 8, 2016; it alleged onset as of August 29, 2014, and was denied on reconsideration on January 5, 2017. See Tr. 17 n.1. The current DIB application was filed on January 9, 2017, alleging onset as of the day immediately following the prior denial determination (January 6, 2017). Plaintiff's date last insured is December 31, 2021.

         During the administrative phase, Plaintiff asked that the earlier applications be reopened; this request was pressed during the ALJ's hearing. Tr. 40, 63-64. Reopening was denied by the ALJ because he did “not find that the evidence shows facts that would have resulted in a different conclusion as to eligibility than originally reached had the evidence been introduced or available at the time of the prior determinations.” Tr. 17 n.1. Nevertheless, the ALJ considered the entire medical record consistent with 20 C.F.R. § 404.1512(b). In his motion to this Court, Plaintiff does not argue that the ALJ's refusal to reopen is error; rather, he asks only that a remand order based on the errors as to which he presented arguments should include the directive that the Commissioner reconsider whether Plaintiff's prior applications should be reopened. Accordingly, this report and recommendation does not separately address the issue of reopening, deeming it waived.

         C. Medical History During Period in Issue

         During the period in issue - from January 6, 2017, until the date of the ALJ's decision on October 17, 2017 - Plaintiff sought and received almost no medical treatment.

         At the beginning of the period, on January 27, 2017, Plaintiff saw his primary care physician, Dr. Raymond Lee, who had signed an opinion ten days prior confirming the diagnosis of fibromyalgia based on diffuse pain, stiffness, fatigue, sleep disturbances, depression and anxiety and irritable bowel symptoms. Tr. 1097. At the January 27, 2017, appointment, Dr. Lee focused on the dosage of Plaintiff's medication, which was causing fatigue, at the same time that fibromyalgia symptoms were “slightly improved with cymbalta, ” while “anxiety/depression[] improved with cymbalta[, ] . . . [n]o longer having panic attacks. Tr. 1706. On examination, Dr. Lee found muscular strength “5/5 strength throughout, ” with all other observations normal except for “tenderness over blt traps and upper arms, ” including full range of motion in the cervical spine. Tr. 1705.

         In February 2017, Plaintiff saw an ophthalmologist to whom he was referred by Dr. Lee based on Plaintiff's complaint of blurry vision. Testing yielded the finding that Plaintiff's vision was normal and the issue was caused by “mild refractive error.” Tr. 1733.

         On September 12, 2017, Plaintiff saw his psychiatrist, Dr. Syed Raza, whose notes reference the long (“more than 9 months”) delay since Plaintiff had last been seen. Tr. 2293. Plaintiff told Dr. Raza that he was depressed and tired since running out of medication two weeks before, although he was sleeping well. Tr. 2294. On examination, Dr. Raza's findings were entirely normal; “[o]verall functioning fine.” Id.

         All of the treating records for the period in issue, except for those related to the last appointment with Dr. Raza, were reviewed by the SSA file-reviewing experts.

         D. Medical History Prior to Period in Issue

         Plaintiff's massive medical record for the prior period, which was available both to the SSA file-reviewing experts and to the ALJ, goes back to 2013. It reflects Plaintiff's consistent PTSD diagnosis and his struggles with related depression and anxiety, particularly the symptoms of self-isolation and challenges in dealing with other people. However, by 2016, following several years of treatment, treating notes are upbeat. See, e.g., Tr. 813 (Feb. 2016: “Vet is coping very well . . . taking care of self and daughter . . . ...


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