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Jessica B. v. Berryhill

United States District Court, D. Maine

June 3, 2018

JESSICA B., Plaintiff
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Performing the Duties and Functions Not Reserved to the Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III, United States Magistrate Judge

         This Social Security Disability (“SSD”) 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 (i) erroneously discounted the opinions of her medical providers, (ii) failed to adequately evaluate the impact of her obesity, and (iii) erroneously deemed her statements regarding her symptoms and limitations only partially credible. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 5-11. I find no reversible error and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; 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 December 31, 2013, Finding 1, Record at 12; that, through her date last insured (“DLI”), she had the severe impairments of status-post bilateral mastectomy and breast cancer treatment (now in remission), bipolar disorder, and post-traumatic stress disorder (“PTSD”), Finding 3, id.; that, through her DLI, she had the residual functional capacity (“RFC”) to perform a limited range of light work as defined in 20 C.F.R. § 404.1567(b), Finding 5, id. at 16-17; that, through her DLI, considering her age (30 years old, defined as a younger individual, on her DLI), 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 7-10, id. at 24; and that she, therefore, had not been disabled from August 13, 2012, her alleged onset date of disability, through December 31, 2013, her DLI, Finding 11, id. at 25. 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; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         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); 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); 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. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         The statement of errors also implicates Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen, 482 U.S. at 146 n.5. At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Weight Given to Medical Provider Opinions

         1. Opinion of Dr. Dixon

         The record indicates that, on May 21, 2014, L. Susan Dixon, M.D. of Counseling Services, Inc., met with the plaintiff for the first time, examined her, and completed a form titled “Medical Source Statement of Ability To Do Work-Related Activities (Mental).” See Record at 671-73, 677-79. The form instructed the medical source to provide an opinion of what the individual could still do despite his/her impairments and to base that opinion on the source's “findings with respect to medical history, clinical and laboratory findings, diagnosis, prescribed treatment and response, and prognosis.” Id. at 671.

         Dr. Dixon opined that the plaintiff's ability to understand, remember, and carry out instructions - even simple ones - was markedly restricted, as was her ability to make judgments on complex work-related decisions. See id. at 671. Asked to identify “the factors (e.g., the particular medical signs, laboratory findings, or other factors described above)” that supported her assessment, she replied: “[status-post] chemotherapy [with] subsequent impairment in memory/cognition[.]” Id.

         Dr. Dixon also found that the plaintiff had marked limitations in her ability to interact appropriately with the public, supervisors, and coworkers and to respond appropriately to usual work situations and changes in a routine work setting. See id. at 672. She identified the factors supporting that assessment as “emotional lability, anxiety[.]” Id.

         Finally, Dr. Dixon noted that the plaintiff's “ability to manage stress is limited and she has poor adaptational skills at present.” Id. She described the factor supporting that assessment as “observation[.]” Id.

         She indicated that these limitations had been present since 2012. See id. at 672.

         In her progress note of the plaintiff's May 21, 2014, visit, Dr. Dixon indicated that, on mental status examination, the plaintiff was “a tearful, casually dressed white female” who made “good eye contact” and had “mildly rapid” speech, a variable affect and anxious mood, appearing “somewhat agitated at times[, ]” but denied suicidal or homicidal thoughts or psychotic symptoms, had no abnormal involuntary movements, and had fair insight and judgment. Id. at 678. Dr. Dixon diagnosed bipolar II disorder (unstable), generalized anxiety disorder (unstable), and PTSD, and assessed the plaintiff with a Global Assessment of Functioning (“GAF”) score of 50.[2] See id.

         The ALJ accorded little weight to Dr. Dixon's report, explaining:

When asked for medical signs, laboratory findings, or other factors to support this assessment, [s]he states only, “observation, ” but does not describe what [s]he has directly observed to support [her] opinion. The contemporaneous records from the [plaintiff]'s therapist at Counseling Services reflect good eye contact, logical, organized relevant thought content[, ] an appropriate mood, being pleasant, engaged and cooperative and sitting throughout the session in June 2014. Moreover there are no medical records to show that Dr. Dixon actually performed a mental status examination at Counseling Services or Psychiatric Associates of Southern Maine.
The undersigned finds Dr. Dixon's report conclusory and against the weight of the record as a whole. The conclusions reached by this physician are not supported by medically acceptable signs, symptoms, and/or laboratory findings, and appear to be based totally on the [plaintiff]'s subjective complaints and out of proportion to the objective evidence obtained during and for the course of treatment. While mental illness and its symptoms are not quantitatively measurable or identifiable on laboratory tests or imaging studies, mental health professionals are trained to make clinical findings based on their observations. In this case, there are no treatment records containing such observations to substantiate such degrees of limitation and there is absolutely no evidence whatsoever to support a marked degree of limitation in the [plaintiff]'s ability to understand, remember and carry out simple instructions, or even in her ability to interact with others. Even though this report is from a specialist, Dr. Dixon's opinion is inconsistent and not supported by the medical evidence as a whole. Therefore, this medical source statement is more akin to an advocacy opinion and thus is accorded little weight.

Id. at 22 (citations omitted).

         The plaintiff argues that the ALJ erroneously rejected Dr. Dixon's opinion on the improper bases that (i) it constituted an advocacy opinion, (ii) the record contained no evidence that Dr. Dixon had ever examined the plaintiff before issuing her medical source statement, and (iii) it was inconsistent with the record as a whole. See Statement of Errors at 6-7. At oral argument, her counsel added that, while the ALJ had correctly considered Dr. Dixon a “treating source, ” he erred in not providing the “good reasons” required for the assignment of weight to a treating source's opinion. 20 C.F.R. § 404.1527(c)(2) (“Generally, we give more weight to medical opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. . . . We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion.”).

         I find no reversible error in the ALJ's evaluation of the Dixon opinion.

         First, as counsel for the commissioner contended at oral argument, the ALJ neither characterized Dr. Dixon as a treating source, see Record at 22, nor was he required to do so.[3] The plaintiff's counsel cited Blevins v. Berryhill, No. 5:16cv310-WTH/CAS, 2017 WL 6330823 (N.D. Fla. July 7, 2017) (rec. dec., aff'd Dec. 11, 2017), for the proposition that a claimant's ongoing relationship with a medical practice can render an affiliated physician who has examined her only once a treating source. See Blevins, 2017 WL 6330823, at *7-9 (applying treating source rule in circumstances in which ...


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