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Ruben M. v. Saul

United States District Court, D. Rhode Island

January 3, 2020

RUBEN M., Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the motion of Plaintiff Ruben M. for reversal of the decision of the Commissioner of Social Security (the “Commissioner”), denying Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under §§ 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (the “Act”). Plaintiff contends that the administrative law judge (“ALJ”) relied on a residual functional capacity (“RFC”)[1] assessment that is not supported by the totality of the evidence of record. Defendant Andrew M. Saul (“Defendant”) has filed a counter 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 entirety of the relevant portion of the record, [2] I find that the ALJ erred in setting nonexertional RFC limits both by ignoring the state-agency psychologist's opinion that he is not capable of more than simple tasks or of interacting appropriately with the general public, as well as by discounting portions of the opinion submitted by a treating mental health clinical nurse specialist based on the ALJ's erroneous conclusions that it is inconsistent with the other evidence and that virtually all mental status evaluations of record are “within normal limits.” I also find that the ALJ erred in basing his exertional RFC on the opinion of a state-agency expert physician whose file review was completed well before Plaintiff's February 2018 MRI resulted in the discovery of potentially material and previously unknown lumbar spinal findings, resulting in a more aggressive approach to treatment of Plaintiff's back pain. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 12) be GRANTED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 14) be DENIED.

         I. Background

         The record reflects that Plaintiff has been enmeshed in a “chaotic lifestyle, ” Tr. 681, first in Puerto Rico (until 1995) and then in Rhode Island. Id. During childhood, he was almost raped and played with matches causing a house to burn down; twenty-five years ago, as a young man in Puerto Rico, he was shot in the right wrist and left knee. One of his two friends shot at the same time was killed. With a ninth-grade education, he has worked intermittently, mostly through placement agencies, doing such jobs as machine operator, and furniture mover, often part-time and never for very long; at least once, he was fired from a job because of problems getting along with others. Tr. 438. He has four children by four different women but has never married. A daughter was raped by his brother, who was imprisoned for it and released during the relevant period. In 2000, Plaintiff was convicted of armed robbery and served over three years in jail; he remained on state probation until 2017. More recently, he was jailed on a charge but was “bailed out and . . . won the case.” Tr. 57. Until April 2016, he received no mental health treatment. Plaintiff is bilingual in Spanish and English, but reads only in Spanish.

         On January 6, 2015, when he was 44 years old (a “younger” person in Social Security parlance), Plaintiff was shot in the left thigh. The wound was complicated by an infection and shrapnel related to the gunshot remains embedded in his tissue. Based on this injury, without the aid of an attorney, Plaintiff applied twice for disability (both DIB and SSI), on February 5, 2015, and May 24, 2016; both sets of applications were denied at the initial administrative phase (on June 13, 2015, and August 20, 2016, respectively) and Plaintiff did not pursue them further. In connection with the second of these two applications, Plaintiff relied not only on the gunshot wound, but also on various mental health disorders (post-traumatic stress disorder (“PTSD”), anxiety and depression). In denying the second of these, the Commissioner's initial assessment concluded that Plaintiff's recovery from the gunshot was continuing, that his claim that he needed to use a cane was undermined by the lack of any “evidence that use of cane is medically necessary, ” Tr. 119, 130, and, with nothing beyond an initial assessment and no ongoing mental health treatment, that he was only moderately limited in his ability to accept instructions or to deal with the public. Tr. 115-25, 126-36.

         Plaintiff's third set of applications are the ones now in issue. They were filed in January and February 2017, again without an attorney. After they were denied initially, Plaintiff engaged legal counsel; advised by counsel, he amended his alleged onset date from shortly after he was shot in January 2015 to April 15, 2016, when he initiated mental health treatment at the Providence Center.

         During the period in issue (beginning on April 15, 2016),[3] Plaintiff has had no employment and has been living with his mother and, at times, with a nephew whose involvement with street violence (the nephew was shot during the relevant period) triggered Plaintiff's PTSD and with a niece who was in jail at the time of the ALJ hearing. Tr. 53, 70, 73. He has friends and, for the past nine years, has had a “long-term partner.” Tr. 53. He attends church with his mother. Tr. 362, 414, 446.

         Physical Symptoms and Treatment. At the start of the relevant period (in April-May 2016), treatment of Plaintiff's ongoing pain in his back and left leg (from the gunshot) was still conducted by Nardone Medical, whose providers noted pain and Plaintiff's unprescribed use of a cane; they suggested that he should see an orthopedist. In June 2016, he was referred to an orthopedic surgeon, Dr. Howard Hirsch, who performed an examination, finding a mild limp, mild atrophy, diffuse allodynia[4] and moderate limits on motion due to “pain behavior.”[5] Tr. 749-50. In July 2016, he saw a podiatrist and got a foot injection for an unrelated foot condition. Tr. 746. The next record reflecting treatment of leg and back pain is not until March 2017, when he initiated care with Dr. Tariq Malik, an internist at Providence Community Heath Center. Tr. 739. Dr. Malik noted his limp and complaints about his back, concluded that the back pain appeared to be caused by his “altered posture and mobility secondary to left knee dysfunction, ” and sent him to physical therapy (including aquatic therapy). Tr. 757. Based on this skimpy record, the state-agency file-reviewing physician expert (Dr. Donn Quinn)[6] concluded that Plaintiff was somewhat exertionally limited, but that he could lift up to fifty pounds occasionally and twenty-five pounds frequently, and could sit, stand or walk for up to six hours each in a normal workday. Tr. 170.

         After file review was completed by Dr. Quinn on June 28, 2017, Plaintiff continued treatment with Dr. Malik, who continued to observe pain with weight bearing, walking with a limp, and spine and knee abnormalities on examination. Then in January 2018, Plaintiff was seen by another orthopedic surgeon, Dr. Steven Blazar of Orthopedics RI. Tr. 863. A physician assistant at Orthopedics RI noted Plaintiff's use of a knee brace and recommended that he continue to use the brace. Tr. 861. At about the same time, on February 23, 2018, an MRI of Plaintiff's spine was ordered; it established for the first time that Plaintiff had a moderate disc bulge with moderately severe foraminal narrowing, which the radiologist recommended be clinically correlated with L4 radiculopathy.[7] Tr. 1047. In addition to yet another physical therapy referral, Plaintiff was promptly sent to Dr. Maher El-Khatib. Tr. 1022-24. Dr. El-Khatib recommended the immediate initiation of a course of injections, Tr. 1019-20, and performed the first lumbar injection on April 19, 2018, with the expectation that there would be further lumbar injections, and possibly facet injections. Tr. 1045. During examinations by various providers in 2018, Plaintiff was observed to have an impaired gait, positive straight-leg-raise on the left, tenderness, great difficulty walking and the inability to walk upstairs. Tr. 1018-42. None of this evidence regarding Plaintiff's spine was seen by Dr. Quinn.

         Mental Health Symptoms and Treatment. Despite the near dearth of mention of mental health symptoms or treatment in the two prior applications, mental health concerns are the focus of the treatment reflected in the record of the pending application. This portion of the record begins with Plaintiff's intake as a new patient at the Providence Center in April 2016, with a seriously abnormal mental status examination (“MSE”) reflecting racing thoughts, thoughts of inadequacy and worthlessness, flashbacks, anxiety, sadness and depression. His care team was quickly staffed up with a counselor with a master's in social work (Clara Ramirez), a case manager (Carlos Guzman and later Priscilla Villa), and a mental health clinical nurse specialist, Nurse Marol Kerge. Nurse Kerge's June 2016 psychiatric evaluation is similar to the intake assessment; it reflects suspiciousness, voices that are like intrusive thoughts, depressed mood, irritability, poor sleep, flashbacks, nightmares, and limited affect range. Tr. 684. Counsellor Ramirez's April 2016 MSE likewise recorded observations of no eye contact, disheveled appearance, agitation, anxiety, rapid speech, disorganized thoughts, and delusions. Tr. 688. During the second half of 2016, Plaintiff continued to see all three mental health professionals; his MSEs improved, but abnormal findings continued. E.g., Tr. 721 (Ramirez Dec. 2016 MSE: depressed, anxious mood, delusional thought content, fearful, hallucinations, hears non-command voices); Tr. 826 (Kerge Oct. 2016 MSE: depressed, anxious mood), Tr. 849 (Guzman Sept. 2016 MSE: guarded behavior, depressed, anxious mood).

         In January 2017, Plaintiff's depression took a turn for the worse, ultimately resulting in a week-long admission to Butler Hospital in February 2017; the Butler intake MSE was severely abnormal, but by discharge, it had significantly improved. Tr. 700-02, 814-19. After the hospitalization, from March to June 2017, Nurse Kerge, Counsellor Ramirez and the new case manager, Ms. Villa, continued to make abnormal MSE observations. E.g., Tr. 783 (Kerge May 2017 MSE: constricted affect, depressed, anxious mood, delusional, suspicious thought content); Tr. 787 (Ramirez May 2017 MSE: depressed, anxious mood, tangential speech, disorganized thought process, sleep disturbance due to nightmares, decrease in appetite, decrease in energy level); Tr. 855 (Villa Apr. 2017 MSE: disheveled appearance, constricted affect, anxious mood, sleep disturbance). In most of these reports, the providers also noted Plaintiff's limp and impaired, slow gait. E.g., id. (“limping has gotten worse”).

         The mental health state-agency file reviewer (a psychologist, Dr. Albert Hamel)[8]examined the Providence Center's record in early July 2017. He acknowledged that Plaintiff's PTSD and depression were severe for Step Two purposes; he opined that Plaintiff retained the ability to do only simple tasks without interaction with the general public. In reaching these findings, Dr. Hamel noted Plaintiff's ongoing use of marijuana, the dearth of mental health treatment on the two prior applications and that Plaintiff appeared to be improving (though not yet back to baseline) after his week-long inpatient stay at Butler Hospital.

         After the state-agency file review was completed, Plaintiff continued treating with the Providence Center team. The most material change during this post-file review period is Plaintiff's sobriety; in June 2017, he was no longer positive for marijuana or any other substances and appears to have sustained sobriety for the remainder of the period in issue. Tr. 996, 1044. Nevertheless, during this period, Plaintiff's mental health abnormalities persisted. Although his symptoms sometimes receded, e.g., Tr. 937 (Ramirez Oct. 2017 MSE almost normal), they also sometimes got worse, e.g., Tr. 939 (Ramirez Nov. 2017 MSE: depressed affect, poor eye contact, decreased energy, sad, depressed, anxious, worried mood, sleep disturbance, speech tangential). The case manager, Ms. Villa, recorded similar ebbs and flows. E.g., Tr. 954 (Villa Oct. 2017 MSE: normal except guarded behavior); Tr. 956 (Villa Nov. 2017 MSE: poor eye contact, apathetic, sad, depressed mood, abnormal motor movements, speech circumstantial, racing, ruminations, circumstantial thought); Tr. 967 (Villa Feb. 2018 MSE: affect anxious, but otherwise normal). In August 2017, Nurse Kerge made very troubling MSE findings: constricted affect, depressed irritable mood, delusional, suspicious thought content, sleep disturbance, Tr. 977, while in December 2017 and again in February 2018, Nurse Kerge's MSEs are essentially normal. Tr. 983-87. However, in approximately the same period, Counselor Ramirez noted significant abnormalities. E.g., Tr. 942 (Ramirez Dec. 2017 MSE: depressed affect, decreased energy, sad, depressed mood, visual hallucinations, sleep disturbance, speech, thought content tangential); Tr. 947 (Ramirez Feb. 2018 MSE: depressed affect, poor eye contact, sad, depressed mood).

         Opinion Evidence. After the last treatment of record and shortly before the ALJ hearing, on April 13, 2018, Nurse Kerge submitted a detailed RFC opinion, opining that, since April 2016, Plaintiff has been moderately severely limited in his ability to relate to other people (including co-workers), in his daily activities and in his personal habits and that his impairments would cause workday interruptions and absences. Tr. 1015. Otherwise, the Kerge opinion reflects moderate limitations. Apart from those prepared by the state-agency file-reviewing expert physicians and psychologists, this is the only medical opinion of record that lists specific RFC limitations.

         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)).

         If the Court finds either that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim, the Court may remand a case to the Commissioner for a rehearing under Sentence Four of 42 U.S.C. § 405(g). Allen v. Colvin, No. CA 13-781L, 2015 WL 906000, at *8 (D.R.I. Mar. 3, 2015) (citing Jackson v. Chater, 99 F.3d 1086, 1097-98 (11th Cir.1996)). If the Court finds that a judicial award of benefits would be proper because the proof is overwhelming, or the proof is very strong and there is no contrary evidence, the Court can remand for an award of benefits. Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001).

         III. Disabilit ...


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