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Campagna v. Berryhill

United States District Court, D. Maine

November 3, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          John H. Rich, III United States Magistrate Judge.

This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred in evaluating (i) the medical opinions of record, (ii) the plaintiff's credibility, and (iii) the plaintiff's residual functional capacity (“RFC”). See Statement of Errors (ECF No. 11) at 2-8. I find no reversible error. Accordingly, I recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through June 30, 2017, Finding 1, Record at 14; that she had severe impairments of bipolar disorder and alcohol dependence, Finding 3, id. at 15; that she had the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: a limitation in concentration/persistence/pace with the ability to understand, carry out, and remember only simple tasks, and a limitation in social functioning requiring object-oriented tasks with only up to occasional interaction with the general public, Finding 5, id. at 17; that, considering her age (45 years old, defined as a younger individual, on her alleged amended disability onset date, June 1, 2013), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 8-11, id. at 20; and that she, therefore, had not been disabled from June 1, 2013, through the date of the decision, September 25, 2015, Finding 12, id. at 21. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).[2]

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         A. The ALJ's Evaluation of Opinion Evidence

         The plaintiff first alleges that the ALJ erred in her consideration of the medical opinions of record. See Statement of Errors at 2-5. The ALJ gave “substantial weight” to the opinions of two agency nonexamining consultants, Thomas Knox, Ph.D., and Brian Stahl, Ph.D., and “less probative weight” to the opinions of Sandra Corbett, M.D., the plaintiff's treating primary-care physician, Thor Agustsson, D.O., her treating psychiatrist, and Virginia Lawrence, N.P., her treating nurse practitioner (“NP”). See Record at 19. I find no reversible error.

         1. The Plaintiff's Treating Sources

         On May 27, 2014, Dr. Corbett completed a form titled “Medical statement concerning bipolar disorder with possible substance abuse for Social Security disability claim.” See Id. at 611-13. Therein, she opined, inter alia, that the plaintiff had marked limitations in her ability to understand and remember either short and simple or detailed instructions, maintain attention and concentration for extended periods, and interact appropriately with the general public. See Id. at 612. She deemed the plaintiff extremely impaired in her ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. See id.

         NP Lawrence completed the same form on July 31, 2014. See Id. at 735-37. Of the 20 categories listed under the heading “Work Limitations Related to Psychiatric State, ” she found the plaintiff to be markedly or extremely impaired in all but three. See Id. at 736-37. She indicated, for example, that the plaintiff was extremely impaired in her abilities to understand and remember short and simple instructions, carry out detailed instructions, and maintain attention and concentration for extended periods. See id at 736.

         NP Lawrence attached a letter in which she stated that the plaintiff, who was diagnosed with bipolar I disorder, had been receiving mental health treatment at her clinic since February 2014. See Id. at 734. She noted that the plaintiff's bouts of bipolar-related mania had led to her hospitalization in December 2013 and March 2014. See Id. Finally, she commented that, although the plaintiff had “demonstrated significant improvement in her motivation to work with psychiatric providers to find the best strategy through psychotropic medications to manage this mood disorder” and had “shown commitment to substance abuse programs[, ]” she was “not in a place of emotional or behavioral stability that would enable her to hold employment.” Id. She explained:

She continues to experience high anxiety and bouts of panic. She is vulnerable to emotional overwhelm in social/public situations and her ability to sustain attention and manage impulsivity is limited. She continues to be easily triggered and becomes distractible such that she is unable to be an effective employee.

See Id. On June 30, 2015, Dr. Agustsson signed the bottom of NP Lawrence's form, effectively endorsing her opinion. See Id. at 867-69.

         The ALJ acknowledged that the opinions of treating sources generally are given more weight, even controlling weight, if they are well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence. See id. at 19; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, she deemed the treating sources' opinions “inconsistent with other substantial evidence[, ] including . . . relatively unremarkable mental status findings.” Id. (citations omitted).

         That “other substantial evidence[, ]” which the ALJ had just discussed in the context of assessing the plaintiff's credibility, included not only findings on mental status examination but also the plaintiff's activities of daily living and the contrary opinions of Drs. Knox and Stahl. See id. at 18-19. With respect to activities of daily living, the ALJ observed, in relevant part, that the plaintiff “ha[d] been somewhat noncompliant with her psychiatric treatment by not taking her prescribed medications properly while running out on multiple occasions.” Id. at 19 (citations omitted).

         The ALJ further noted, in explaining why she had given substantial weight to the Knox and Stahl opinions, that “the [plaintiff's] own treating psychiatric clinicians, particularly at the Maine Behavioral Health Center, have indicated GAF's [Global Assessment of Functioning scores] as high as ‘60', consistent with only moderate symptoms.” Id. (citations omitted).[3] She stated that she gave less weight to treating sources' assessments of GAF scores between 24 and 50, which “obviously represent only short-term exacerbations in symptoms which improved in short periods of time.” Id. at 19 n.6 (citations omitted).[4]

         The thrust of the plaintiff's argument is that the ALJ erred in choosing to credit the opinions of two agency nonexamining consultants over those of three treating sources who concurred that her mental-health symptoms were disabling. See Statement of Errors at 2-3. Yet, it was the ALJ's job to resolve such conflicts. See, e.g., Rodriguez, 647 F.2d at 222 (“The Secretary may (and, under his regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for him, not for the doctors or for the courts.”). An ALJ's choice to credit the opinions of agency nonexamining consultants over those of treating medical sources is not, in itself, error. See, e.g., Brown v. Astrue, No. 2:10-cv-27-DBH, 2010 WL 5261004, at *3 (D. Me. Dec. 16, 2010) (rec. dec., aff'd Jan. 4, 2011).

         Nor was the ALJ obliged to give the plaintiff's treating sources' opinions controlling weight on the record before her. As a matter of law, the opinion of NP Lawrence was not entitled to controlling weight because a nurse practitioner is not a so-called “acceptable medical source.” 20 C.F.R. §§ 404.1513(a), 416.913(a) (nurse practitioners not listed among those deemed acceptable medical sources); Social Security Ruling 06-03p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017) (“SSR 06-03p”), at 327 (“[O]nly ‘acceptable medical sources' can be considered treating sources . . . whose medical opinions may be entitled to controlling weight.”) (citations omitted). The opinions of Drs. Corbett and Agustsson were entitled to controlling weight only if “well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the plaintiff's] case record[.]” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). As the plaintiff acknowledges, see Statement of Errors at 3, the ALJ found otherwise, see Record at 19, and, for the reasons discussed below, the plaintiff does not succeed in demonstrating that this conclusion was unsupported by substantial evidence.

         Because the ALJ did not give the opinions of Drs. Corbett and Agustsson controlling weight, she was required only to supply “good reasons” for the weight she afforded them based on consideration of relevant factors.[5] See, e.g., Heath v. Astrue, No. 1:12-cv-99-DBH, 2012 WL 6913440, at *11 (D. Me. Dec. 30, 2012) (rec. dec., aff'd Jan. 18, 2013) (“[O]nce the [ALJ] determined that the opinion [of a treating source] was not entitled to controlling weight, he had discretion to reject it, provided that he supplied good reasons for so doing.”) (citations and internal quotation marks omitted). The commissioner correctly observes that lack of support and inconsistency with other substantial evidence of record are well-recognized bases for affording a treating source's medical opinion little or no weight. See Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 16), at 4-5; Bailey v. Colvin, No. 2:13-cv-57-GZS, 2014 WL 334480, at *3 (D. Me. Jan. 29, 2014) (ALJ's assignment of little weight to treating physician's opinion passed muster when based, inter alia, on inconsistency between treatment notes and treating physician's conclusions and fact that opinion appeared to be based primarily on the claimant's subjective allegations).

         With respect to the opinion of NP Lawrence, the controlling standard differed: the ALJ was obliged simply to “explain the weight given” to the Lawrence opinion “or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the [ALJ's] reasoning[.]” SSR 06-03p at 331.

         Because, as I explain below, the ALJ provided good reasons for rejecting the opinions of all three treating sources, she necessarily met the lower standard to provide an explanation of the weight given to the opinion of NP Lawrence.

         In her statement of errors, the plaintiff takes issue with two of the bases on which the ALJ assigned the opinions of her treating sources little weight: GAF scores and medication noncompliance. See Statement of Errors at 4-5.

         On the first point, the plaintiff contends that the ALJ placed an undue emphasis on GAF scores in the 60s, representing moderate symptoms, when she was consistently found to have GAF scores in the 50s, representing serious symptoms. See id. at 4. She adds that, consistent with her bipolar disorder, her GAF scores deteriorated to 24 on three occasions: in December 2013, when she reported that she had a plan to shoot herself, and in February and March 2014, after her boyfriend broke a promise to take her to Cancun. See id. She asserts that, while NP Lawrence did assess her with a GAF score of 60 on February 25, 2015, after she had received “positive feedback” while spending a month and a half with her family in California, she reported a psychotic break on June 3, 2015, following her increased use of alcohol to self-medicate her anxiety, and, by June 30, 2015, was assessed with a GAF score of 50. See id. She notes that her GAF score thereafter remained at that level or lower. See id.

         The commissioner rejoins that the ALJ properly characterized the plaintiff's GAF scores in the 24 to 40 range as corresponding with brief hospitalizations. See Opposition at 6. She concedes that the ALJ erred in discounting GAF scores of 50 on the same basis given the frequency with which that score was assessed. See id. ...

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