Opinion
CIVIL ACTION NO. 12-12345-DPW
01-16-2014
MARK MARTIN, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM
Mark Martin contests the final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for Supplemental Security Income ("SSI"). After consideration of the record before me, which I find provides substantial evidence for the denial, I will affirm the Commissioner's decision.
I. BACKGROUND
A. Basic Facts
Mr. Martin was forty-five years old on November 1, 2007, the date of the onset of his alleged disability. He has completed high school and attended college for periods of time, but has not obtained a college degree. Currently, he lives with his girlfriend and receives food stamps.
B. Work History
Mr. Martin last worked in November 2007, driving a truck for Verizon. Mr. Martin was employed by Verizon from approximately 1995 until 2007, though he was laid off due to substance abuse issues in 2004 and again in 2005, and was rehired only on a provisional basis. At Verizon, Mr. Martin worked as a driver, doing repair work, and in a sales position. Mr. Martin's work history also includes work as a temporary laborer through a temp agency, and as a security guard.
During his hearing before the administrative law judge, Mr. Martin testified that he left his job with Verizon because driving through Brighton, Massachusetts brought up memories of his childhood abuse by Catholic priests. In March 2008, however, he told an examining physician, Dr. Allan Nineberg, that he was fired due to a relapse of drug abuse and a failed drug test during the summer of 2007. He stated to a consultative examiner that he left his job because he "hated" Verizon and everything about the job. In a Social Security Disability filing, Mr. Martin claims that he left the job because of his disability.
C. Medical History
1. Mental Impairments
a. Evaluation by Dr. Allan Nineberg
Dr. Allan Nineberg, M.D., a psychiatrist, evaluated Mr. Martin on March 8 and March 13, 2007, and had several subsequent phone conversations with him. Dr. Nineberg documented the results of his evaluation in a report dated May 15, 2007.
In his evaluation, Dr. Nineberg reported that Mr. Martin states that he has seen mental health professionals for treatment for substance abuse issues, depression, and anxiety. Mr. Martin also reports taking a number of medications, including Wellbutrin, Zoloft, Xanax, Ambien, Seroquel, and Klonopin.
Mr. Martin reported a long history of substance abuse. He began using alcohol and marijuana as a young teenager. By the end of high school, his substance abuse had escalated and included hallucinogens, opiates, benzodiazepines, and cocaine. He was admitted to McLean hospital on two occasions in 1994. He was sober from 1994 until 2003. In 2003, he resumed his substance abuse, which at that point included intravenous heroin use. He became sober in 2004. He experienced two relapses over the next two years, but reported being sober since 2006.
According to Dr. Nineberg's report, Mr. Martin's substance abuse and mental health issues can be attributed to and/or were exacerbated by a history of sexual abuse at the hands of Catholic priests occurring when Mr. Martin was a young teen and in high school.
Dr. Nineberg reported that Mr. Martin was generally friendly and cooperative, and spoke openly with intelligence and intact cognition about his experiences. However, he became angry and raised his voice while discussing his history of abuse. Mr. Martin appeared depressed, but there was no evidence of pyschosis, hallucinations, delusions, homicidal, or suicidal ideation, nor was there any evidence of malingering or prevarication.
Dr. Nineberg re-interviewed Mr. Martin by telephone on November 8, 2007 regarding the question whether he could testify at trials related to his sexual abuse. Following this interview, Dr. Nineberg wrote a letter to Mr. Martin's attorney in which he opined that "if Mr. Mark Martin is required to offer testimony in multiple courtroom trials, there is a very high likelihood that this experience will re-traumatize him, cause extreme anxiety and substantially increase the risk of further psychological harm."
Dr. Nineberg evaluated Mr. Martin again on February 25, 2008 during a one and a half hour session. Mr. Martin reported relapsing into drug use during the summer of 2007, using benzodiazepines, alcohol, pills, and heroin.
Mr. Martin stated that he felt depressed, that he was cleaning himself irregularly, and dislikes leaving his house. He had difficulty sleeping, had gained weight, and picked at his feet to the point of bleeding. He experienced issues with trust and anxiety, and paranoid ideations about the Catholic Church. Mr. Martin also experienced bouts of anger and rage, which contribute to and were believed to explain in part his substance abuse.
Dr. Nineberg's assessment was that Mr. Martin's mental status had deteriorated since the May 2007 evaluation. He was more agitated and angry than during prior visits. He appeared distraught, anxious, depressed, and emotionally fragile. He also demonstrated hopelessness, consistent with and contributing to his substance abuse. Dr. Nineberg described Mr. Martin's clinical prognosis as "very guarded."
Dr. Nineberg concluded in his second report offering the opinion "with a reasonable degree of medical certainty, that Mr. Martin is currently disabled from working because of his substance abuse and depression . . . ."
b. Evaluation by Dr. Michael Bohnert
On May 1, 2010, Mr. Martin was evaluated by Dr. Michael Bohnert, M.D. Mr. Martin reported his drug and alcohol history beginning with marijuana and alcohol use in his early teens, escalating to cocaine, speed, LSD, mescaline, and heroin, as well as his problems with depression and anxiety. He reported multiple attempts at sobriety and that, with the support of his girlfriend, he had currently been sober for six months. Mr. Martin recounted his history of sexual abuse to Dr. Bohnert, and Dr. Bohnert also reviewed Dr. Nineberg's report and letters. Dr. Bohnert noted that Mr. Martin had no history of hallucinations or delusions, but had paranoid suspiciousness, in particular regarding the Catholic Church.
Dr. Bohnert performed a mental status examination on Mr. Martin. Dr. Bohnert reported that Mr. Martin's speech was normal in volume and rate, with no psychomotor slowing or agitation. Mr. Martin described his mood as good. He showed a normal stream of mental activity and thought that was coherent and goal directed. Mr. Martin was oriented in all spheres, but did not know the county in which he lived. He registered three of three objects in immediate recall and two of three in delayed recall. He correctly spelled the word "world" in reverse, followed a three-stage command correctly, and copied pentagons correctly. He was able to subtract sevens from one hundred without error and threes from twenty correctly. He scored a twenty-eight out of thirty on a mental status examination and abstracted proverbs correctly. Dr. Bohnert concluded that Mr. Martin made a full effort on this cognitive testing and estimated Mr. Martin's intelligence as average.
c. Evaluation by M. Berkowitz
On June 9, 2010, M. Berkowitz, a State Disability Determination Service medical consultant, drafted a a mental residual functional capability report on Mr. Martin. Berkowitz's report states that Mr. Martin reported his usual mood as "good" and denied current or recent suicidal ideation. Mr. Martin reported flashbacks and depression and that he did not feel he could work because of his inability to interact with others. Although Berkowitz found that Mr. Martin was "moderately limited" in some areas related to concentration, persistence and social interaction, he concluded that Mr. Martin "appears capable of persisting at a range of simple work tasks with reduced public contact."
On October 11, 2010, Dr. Joan Kellerman reviewed all of the evidence in Mr. Martin's file at that time and affirmed Berkowitz's conclusion.
d. Treatment Notes from the South Bay Mental Heath Center
In addition to the evaluations above, Mr. Martin submitted treatment notes from mental health providers at the South Bay Mental Health Center dating from 2010. Those records indicate that he received treatment from a therapist at home because of fear of leaving the house and driving.
The notes describe Mr. Martin as chatty and charismatic, but identify issues with anxiety, depression, anger, and lethargy. They report that Mr. Martin has difficulty with self-care, and fears going outside and driving. The reports contain sporadic reports of auditory hallucinations, as well as concerns regarding past suicidal ideation.
On October 4, 2010, Sarah Provencher, MS, a health-care provider at South Bay Medical Center, evaluated Mr. Martin. Ms. Provencher assessed Mr. Martin as having a Global Assessment of Functioning score of twenty-one at that time. A score of twenty- one to thirty indicates behavior that is considerably influenced by delusions or hallucinations, serious impairment in communication or judgment, or inability to function in almost all areas. Diagnostic and Statistical Manual of Mental Disorders, 34 (4th Ed. 2000).
Subsequently, Ms. Provencher filled out a form in connection with Mr. Martin's application for state transitional benefits. In that form, referencing Mr. Martin's issues with depression and anxiety, Ms. Provencher opined that Mr. Martin "does have a physical, mental health, or cognitive impairment(s) affecting his or her ability to work AND the impairment(s) is expected to last . . . more than a year." She did include the caveat that she "was only able to report on [Mr. Martin's] responses to the questions due to only meeting him once."
In a report dated December 20, 2010, Ms. Provencher assessed Mr. Martin's GAF score to be forty, indicating an impairment in reality testing or communication, or major impairment in several areas. Diagnostic and Statistical Manual of Mental Disorders, 34 (4th Ed. 2000). She indicated that she expected that his GAF score at discharge would be fifty-one, a level which indicates moderate symptoms.
2. Physical Impairments
The administrative record includes progress notes from clinical examinations of Mr. Martin documenting a series of physical ailments. Those notes indicate that Mr. Martin suffers from hypertension, arthritis, obesity, swelling, and pain in limbs, including specifically in his knee and hip.
Notes spanning from late 2010 and 2011 indicate that Mr. Martin had been walking for exercise and to lose weight. In September 2010, Mr. Martin complained that he cannot easily walk and experienced pain in his shoulders, back, knees, arms, and fingers. A note from March 2011 indicates that Mr. Martin had swelling in his ankles and was advised to avoid standing for long periods of time. Notes from mid-2011 indicate that Mr. Martin suffered an injury causing shooting pain while stepping from a curb. A note from July 2011 indicates that Mr. Martin was "trying to lose weight and can't walk more than ½ mile w. out pain in his thigh," that his hip was seventy-percent bone-on-bone, and that a hip replacement is expected in one to three years. A radiograph taken that same month indicated mild degenerative changes in his knee joint and knee joint osteoarthritis.
In June 2010, Mr. Martin was involved in a motor vehicle accident which caused him to lose consciousness and in which he received injuries to his left arm and shoulder.
Dr. M.A. Gopal provided an assessment of Mr. Martin's injuries following this accident. He stated that Mr. Martin "sustained injuries to head, left arm, and shoulder in a motor vehicle accident in June 2010. There were no obvious neurological deficits. There were no traumatic injuries of abdomen, chest, and pelvis. There was no evidence of fractures. Condition is expected to be not severe by 6/11."
Following the administrative hearing (described below), a letter was submitted to the Appeals Council and included in the record. In that letter, dated July 15, 2011, Dr. Eric Holstein, an orthopedist, wrote concerning Mr. Martin and the pain experienced in his right knee and groin. Among Dr. Holstein's observations from x-ray examinations were that there was "severe degenerative joint disease of the right hip" and Mr. Martin had "right hip osteoarthritis and right knee internal derangement." The letter also indicated that Mr. Martin "will use a cane in his left hand."
D. The Administrative Hearing
On February 1, 2010, Mr. Martin filed concurrent applications for Title II Disability Insurance Benefits and Title XVI Supplemental Security income. Mr. Martin claimed that he became disabled on November 1, 2007. Mr. Martin's claims were denied on June 18, 2010 and again upon reconsideration on November 3, 2010. On November 22, 2010 Mr. Martin filed a written request for a hearing.
On September 13, 2011, an administrative law judge held a hearing on Mr. Martin's claims. During that hearing, the ALJ heard testimony from Mr. Martin and from James Scorzelli, a vocational expert.
1. Mr. Martin's Testimony
Mr. Martin testified regarding his work history, including his work with Verizon from 1995 until 2007, which involved driving a truck, sales, repair, and customer service. He also described working as a laborer for a temp agency in Minnesota from 2004 until 2005. He also explained that he had been laid off at that time from Verizon because of his heroin use.
He described his physical problems including his knee and hip issues, and arthritis in the hands, explaining that he saw orthopedists for these issues. Mr. Martin also described his treatment at the South Bay Mental Health Center, where he was receiving treatment and medication for his mental health issues.
Mr. Martin testified that he heard voices and ongoing conversations in his head. The medications that he has been prescribed reduce the number of voices from seven until two. He described his other symptoms including paranoia, inability to focus, and anxiety. He also testified regarding his drug and alcohol use. He testified that he had used drugs and/or alcohol on and off from 2003 until 2010, but explained that he had not had alcohol in "a couple years" and he had not used heroin since January 2010. He reported attending meetings of alcoholics and narcotics anonymous for support in his sobriety.
In terms of his physical capabilities, Mr. Martin reported being able to stand for fifteen to twenty minutes, walk continuously for one hundred yards, sit normally for fifteen to twenty minutes, and lift and carry thirty pounds.
Regarding his daily activity, Mr. Martin reported that he showers infrequently, perhaps once per month, and that he has irregular sleep patterns. He performs some household tasks such as taking out the garbage and doing dishes, but is unable to perform other tasks such as grocery shopping. He also reported that he was unable to drive due to anxiety attacks.
Mr. Martin reported that he typically uses a cane for walking, but forgot to bring it to the administrative hearing. He also testified that he is sometimes unable to perform household tasks because he is "curled up in a ball on the bed" and that he has difficulty focusing while reading or watching television.
2. Mr. Scorzelli's Testimony
Mr. Scorzelli first discussed Mr. Martin's work history. Mr. Scorzelli classified Mr. Martin's work as a laborer as very heavy and skilled work. He classified Mr. Martin's work as a delivery driver as medium and semi-skilled, with skills pertaining to operating a vehicle. He classified Mr. Martin's work in sales as light and semi-skilled, with skills pertaining to dealing with the public. He classified Mr. Martin's work taking repair orders for Verizon as sedentary and skilled with the skills being clerical in nature.
The administrative law judge asked Mr. Scorzelli whether, given Mr. Martin's work and educational history, and assuming that an individual is capable of performing work at the sedentary level, the work is limited to simple, routine, repetitive, competitive tasks, with no interaction with the public, and the individual has a moderate limitation in the ability to interact with co-workers and with supervisors, such an individual would be capable of performing the jobs in Mr. Martin's work history. Mr. Scorzelli indicated that such an individual would not be able to perform the jobs in Mr. Martin' work history. However, Mr. Scorzelli did indicate that such an individual would be able to perform other jobs which exist in the national and regional economy, including jobs such as a surveillance monitor, touchscreen inspector, and optical goods polisher.
Mr. Scorzelli testified that, given the same restrictions, but changing the individual's limitations to be moderately severe in the ability to maintain attention and concentration, respond appropriately to supervisors and co-workers and maintain appropriate persistence and pace, such an individual would be unable to work at any jobs in the national economy.
E. The Decision of the Administrative Law Judge
In her September 20, 2011 decision, the administrative law judge determined that Mr. Martin remained insured under the Social Security Act through December 31, 2011 and that Mr. Martin had not been under a disability within the meaning of Social Security Act from November 1, 2007 until the date of her decision.
She determined that Mr. Martin had not engaged in gainful activity since November 1, 2007, the onset date of Mr. Martin's alleged disability, and that he met the insured status of the Social Security Act through December 31, 2011.
To be eligible for SSDI, Mr. Martin was required to show that he was insured for disability at the time he became disabled. Under the regulations, he was required to show that he was fully insured and had "at least 20 [quarters of coverage] in the 40-quarter period" leading up to the quarter in which he became disabled. 20 C.F.R. § 404.130(b).
The ALJ also found that Mr. Martin's post-traumatic stress disorder, major depressive disorder, anxiety, osteoarthritis of the right hip and knee, hypertension, and obesity qualified as "severe" disorders because they cause "more than a minimal limitation in the claimant's ability to perform basic work activities." She found Mr. Martin's other ailments to be non-severe. These non-severe impairments include chronic pain syndrome, hypercholesterolemia, hypertriglyseridemia, degenerative changes in the spine, shoulder and left foot, and bilateral arthritis within his hands. She found that there was no indication that these non-severe impairments imposed more than a minimal limitation on Mr. Martin's ability to perform basic work activities.
Based upon her assessment of Mr. Martin's limitations, the ALJ determined that Mr. Martin's impairments did not meet or medically equal the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
She found that, considering Mr. Martin's osteoarthritis of the knee and hip, he was not unable to ambulate effectively. She also found that Mr. Martin had mild restrictions in activities of daily living; while he was able to take out the garbage, do laundry, and complete other household tasks, he did not drive and has problems with grooming and bathing. She found that, in terms of social functioning, Mr. Martin has moderate difficulties. He has difficulty going out to the grocery store due to the number of people he is exposed to at one time, struggles with anger, and does not like to speak to other people. However, he has attended Alcoholics Anonymous and Narcotics Anonymous meetings. She found that Mr. Martin has moderate difficulties with concentration, persistence, and pace, including difficulties with focusing. He reports having to re-read articles or re-watch television shows to understand their content. She reported that Mr. Martin has experienced no episodes of extended decompensation.
The ALJ next determined that Mr. Martin has the residual functional capacity to perform sedentary work, but is limited to simple, routine, repetitive, competitive tasks, assuming normal work breaks over eight hours, without interaction with the public, and with moderate limitation in the ability to interact with co-workers and supervisors.
The ALJ described Mr. Martin's symptoms according to his testimony: That he does not like to leave his house and avoids all social interaction, and is frequently paranoid. He claims that he does not talk to anyone anymore, and he has difficulty focusing, sometimes having to ask a question to himself in his head three times in order to arrive at an answer. He claims to hear voices, sometimes up to seven voices in his head at one time; however with medication he claims he only hears two voices. He claims that the pain in his right knee and hip has gotten worse over the past couple of years, and that he is going to need a hip replacement. He claims that he can only stand for twenty minutes, walk one hundred yards, and can only sit in one position for fifteen to twenty minutes, though he did claim that he could lift up to thirty pounds.
The ALJ concluded that Mr. Martin's medically determinable ailments could reasonably be expected to cause the alleged symptoms, but found that Mr. Martin's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with her residual capacity assessment.
With regard to his physical impairments, the ALJ determined that Mr. Martin's hypertension was uncontrolled, that he had an abnormal EKG scan and that his physician had advised him to avoid standing for prolonged periods. Mr. Martin's knee showed decreased range of motion, and both knee and hip exhibited pain. While these impairments did limit Mr. Martin's ability to walk, he stated that he has been walking for exercise. In addition, though he testified to using a cane, there is no indication that he has been prescribed a cane by a doctor. Mr. Martin's obesity, with a BMI above forty, qualified as extreme. However, the ALJ found that the limitations imposed by this obesity were reflected in her residual functional capacity assessment and that there was no showing that the obesity precludes work altogether.
In terms of mental impairments, the ALJ found that the record establishes that Mr. Martin suffers from several mental disorders stemming from abuse as a child, including major depressive disorder, post-traumatic stress disorder, personality disorder N.O.S. with paranoid traits, and general anxiety disorder. The ALJ discussed Dr. Nineberg's evaluation, noting that, at the May 2007 evaluation, Mr. Martin had intact cognition, with no delusions, hallucinations, or suicidal ideation. However, he did become angry when recounting his childhood abuse and suffers from psychological problems stemming from abuse. The ALJ also discussed Dr. Bohnert's evaluation during which Mr. Martin exhibited a good mood with coherent and goal directed thoughts.
The ALJ recounted the results of test of Mr. Martin's cognitive ability, noting that the record contained a GAF score of forty given by Dr. Provencher in September 2010, and a GAF score of twenty-one from a test performed in April 2010. The ALJ noted the oddity of Dr. Provencher's note that Mr. Martin "reports unable to leave name." The ALJ also noted Dr. Provencher's expectation that Mr. Martin's GAF score would be fifty-one upon discharge. The ALJ wrote that the April 2010 GAF score of twenty-one "appears to be entirely based on the claimant's subjective complaints after the first referral to the South Bay Mental Health Facility." With respect to all the recorded GAF scores, the ALJ wrote that she "finds the above GAF scores to be conclusory, and therefore accords them little weight."
The ALJ also discussed Mr. Martin's ongoing therapy. She noted that this therapy was taking place at Mr. Martin's home because of his fear of going outside and driving. Mr. Martin has been described in the therapy notes as chatty and charismatic, and generally cooperative, although with anger issues. Mr. Martin began to report hearing voices, but this complaint appears only sporadically in the medical records. Reports are also inconsistent in describing Mr. Martin as a danger. The ALJ noted that the reports consistently report anxiety, racing thoughts and inability to sit still, and that Mr. Martin takes medication for mental impairments.
The ALJ described Mr. Martin's activities of daily living, noting that he can take out the garbage, and do dishes and laundry, though he does have trouble with grooming. She reported his sleeping as "erratic" and noted that he does not drive or go shopping, but will leave the house for doctor's appointments and has attended Alcoholics Anonymous and Narcotics Anonymous.
The ALJ also described inconsistencies with Mr. Martin's statements regarding his reason for ceasing work for Verizon and his past substance abuse which raised questions of Mr. Martin's credibility. With regard to leaving Verizon, Mr. Martin has inconsistently reported that he left because his job raised memories of his childhood abuse, because of his dislike for the job, or because of his substance abuse and failed drug tests. With regard to his substance abuse, he has inconsistently reported the dates on which he has been sober after his history of drug and alcohol abuse. Another issue raising credibility concerns is that Mr. Martin told Dr. Nineberg that he tried to collect unemployment benefits, claiming that he had been laid off from Verizon, when in fact he had been fired for substance abuse.
In reaching her determination, the ALJ accorded great weight to the opinion of M. Berkowitz and Dr. Joan Kellerman, who both opined that Mr. Martin appeared capable of persisting at a range of simple work tasks with reduced public contact. She also afforded great weight to Dr. Gopal's opinion that Mr. Martin's injuries sustained in the June 2010 accident were expected to be non-severe by June 2011, which the ALJ found to be supported by the weight of the objective medical evidence. The ALJ afforded some weight to the opinion of Dr. Provencher that the claimant had impairments which were expected to last more than one year and which limited his ability to work.
Based upon her determination of Mr. Martin's residual functional capacity and upon Mr. Scorzelli's testimony as a vocational expert, the ALJ determined that Mr. Martin would be able to perform the requirements of representative occupations such as: Surveillance System Monitor, D.O.T. 379.367-010 (unskilled work performed at the sedentary level with 4,000 jobs available in Massachusetts and 200,000 nationally); Touch Screen Inspector, D.O.T. 726.684-010 (unskilled work performed at the sedentary level with 700 jobs available in Massachusetts and 20,000 nationally); and Optical Glass Polisher, D.O.T. 713.684-034 (unskilled work performed at the sedentary level with 1,800 jobs available in Massachusetts and 73,000 nationally). Accordingly, she determined that Mr. Martin is capable of making a successful adjustment to other work that exists in significant numbers in the national economy and that a finding of "not disabled" is appropriate.
On October 18, 2012, the Appeals Council of the Ofice of Disability Adjudication and Review denied Mr. Martin request for review, which exhausted his administrative remedies and made this case ripe for judicial review under 42 U.S.C. § 405(g). Mr. Martin has moved for an order reversing the Commissioner's decision. The defendant has moved for an order affirming that decision.
II. STATUTORY FRAMEWORK
A. Standard of Review
Under the Social Security Act, this court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Review is "limited to determining whether the ALJ used the proper standards and found facts based on the proper quantum of evidence." Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
Although I review questions of law de novo, Seavey v. Barnhart, 276 F.3d at 1, 9 (1st Cir. 2001), the Commissioner's factual findings must be treated as conclusive if they are "supported by substantial evidence," 42 U.S.C. § 405(g). Substantial evidence exists where "a reasonable mind, reviewing the record as a whole, could accept it as adequate to support [the Commissioner's] conclusion." Ortiz v. Sec'y of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citation omitted). By contrast, I am not bound by factual findings that are "derived by ignoring evidence, misapplying law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
B. Standard for Entitlement to SSDI and SSI Benefits
The underlying issue before me is whether Martin is "disabled" for purposes of the Social Security Act and is therefore eligible for SSDI and SSI benefits. A "disability" is defined by the Act as an inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period" of at least twelve months. 42 U.S.C. § 423(d)(2)(A) (defining disability for SSDI); 42 U.S.C. § 1381c(a)(3)(A) (defining disability for SSI).
An individual may only be considered disabled for purposes of receiving benefits if his impairment is "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A) (SSDI); 42 U.S.C. § 1381c (a)(3)(B) (SSI).
Under the relevant regulations, the Commissioner evaluates an individual's claim of disability by following a five-step analysis. 20 C.F.R. §§ 404.1520(a), 416.920(a). If the Commissioner determines that the claimant fails any of the five steps, he can find that the claimant is not disabled under the Act and need not continue the sequential analysis. Id. §§ 404.1520(a)(4), 416.920(a)(4).
Under the first step, a claimant is not considered disabled if she is engaged in "substantial gainful activity." Id. Under the second step, if the claimant does "not have a severe medically determinable physical or mental impairment that meets the duration requirement . . . or a combination of impairments that [are] severe and meets the duration requirement" the individual is not considered disabled. Id. Under the third step, if a claimant's impairment meets or is equivalent to one specifically listed in the regulations and meets the duration requirement, the individual is deemed disabled. Id.
At the fourth step, the claimant's residual functional capacity is determined, and if, given this determination, the claimant is capable of performing her past relevant work, he is not considered disabled. Id.
The fifth step considers the claimant's residual functional capacity as well as age, education, and work experience to determine whether the claimant can make an adjustment to other work. If an adjustment can be made, the claimant is not considered disabled. Id.
III. ANALYSIS
Mr. Martin claims that the Social Security Commissioner made a series of errors in evaluating his claim, and therefore his denial of SSDI and SSI should be reversed or remanded for further consideration. First, Mr. Martin claims that the ALJ improperly weighed the medical evidence relating to his mental impairments. Second, Mr. Martin claims that the ALJ's decision contains factual inaccuracies which improperly affected her evaluation of Mr. Martin's mental impairments. Third, Mr. Martin claims that the ALJ improperly weighed the medical evidence relating to his physical impairments. Fourth, Mr. Martin claims that the ALJ erred by according significant weight to non-treating sources. Finally, Mr. Martin claims that the ALJ's residual functional capacity determination is not supported by substantial evidence. Each of these claims will be addressed in turn.
A. Improper Weighing of Evidence of Mental Impairments
Mr. Martin contends that the ALJ "wholly ignored" large portions of the medical evidence and selectively referenced parts of the medical record supporting the decision to deny Mr. Martin benefits. In particular, Mr. Martin claims that the ALJ did not adequately consider the report and letters submitted by Dr. Nineberg and made only two brief references to Dr. Nineberg's report in her decision.
I do not find these criticisms well taken. The ALJ's report makes clear that she did review and consider Dr. Nineberg's report--and in fact accepted a number of his conclusions. The ALJ wrote, citing Dr. Nineberg's report, that "[t]he record does establish that the claimant suffers from several mental disorders, stemming from abuse as a child, including major depressive disorder, post-traumatic stress disorder, personality disorder N.O.S. with paranoid traits, and generalized anxiety disorder." The ALJ also explained that "[a]t a psychiatric evaluation performed by Allan S. Nineberg, M.D. in May 2007, the claimant had intact cognition, with no evidence of psychosis hallucinations, delusions or suicidal ideation. However, he did become extremely angry when recounting his experiences as a child, and Dr. Nineberg did note that he suffers from psychological problems stemming from abuse." It is clear that the ALJ not only reviewed the conclusions in Dr. Nineberg's May 2007 report, but accepted many of the factual conclusions set forth in his report. In her findings, the ALJ found that Mr. Martin's post-traumatic stress disorder, major depressive disorder, and anxiety, all described by Dr. Nineberg, qualified as "severe" because they cause "more than a minimal limitation in [Mr. Martin's] ability to perform basic work activities."
It is true that the ALJ did not specifically reference Dr. Nineberg's March 2008 follow-up evaluation. However, "[a]n ALJ can consider all the evidence without directly addressing in [her] written decision every piece of evidence submitted by a party." N.L.R.B. v. Beverly Enterprises-Massachusetts, Inc., 174 F.3d 13, 26 (1st Cir. 1999). See also N.L.R.B. v. Katz's Delicatessen of Houston St., Inc., 80 F.3d 755, 765 (2d Cir. 1996) (ALJ may resolve credibility disputes implicitly rather than explicitly where his "treatment of the evidence is supported by the record as a whole."). Here, the ALJ's treatment of Mr. Martin's claim demonstrates that she adequately addressed Dr. Nineberg's opinions. She recognized that Mr. Martin suffered from severe mental impairments, but, according great weight to the opinions of the consultants M. Berkowitz and Dr. Kellerman, she determined that Mr. Martin was capable of persisting at a range of simple work tasks with reduced public contact. The decision to credit and give such weight to the opinions of Berkowitz and Dr. Kellerman as she chose was within the ALJ's authority, and the opinions of Dr. Nineberg, who was an evaluating, rather than treating physician, are entitled to no greater weight than other sources in the record. "It is within the Secretary's domain to give greater weight to the testimony and reports of medical experts who are commissioned by the Secretary." Keating v. Sec'y of Health and Human. Serv., 848 F.2d 271, 275, n.1 (1st Cir. 1988) (per curiam).
Equally important, even if fully credited, Dr. Nineberg's March 2008 follow-up evaluation would not require a decision contrary to that reached by the ALJ. Dr. Nineberg's March 2008 report describes the deterioration of Mr. Martin's conditions over the previous year, but is primarily concerned with Mr. Martin's relapse into alcohol and drug abuse. That report states in its penultimate paragraph that "Mr. Martin is currently disabled from working because of his substance abuse and depression . . . my estimate of a successful treatment of his substance abuse is no greater than 50%. However, even in the presence of solid recovery and sobriety, I believe his chance for gainful employment is fair. However, if he does not maintain extended sobriety, I believe his chances of working steadily and long term are extremely small." Disability benefits are not available where drug addiction or alcoholism is a contributing factor to a determination of disability. See 42 U.S.C. § 423(d)(2)(c); Mears v. Astrue, 2012 WL 458619, at *3 (D. Mass. February 7, 2012). Dr. Nineberg's report indicates that substance abuse is a cause of his disability and that, if sober, Mr. Martin's chances of employment are "fair." This opinion, even if fully credited, supports the ALJ's ultimate determination.
B. Factual Inaccuracies Regarding Mr. Martin's Mental Impairments.
Mr. Martin points to two alleged factual inaccuracies in the ALJ's determination. First, the ALJ reported that, when assessing Mr. Martin as having a GAF score of forty, his therapist wrote that Mr. Martin "reports unable to leave name." The context, as well as my review of the document, suggests the therapist intended to write that Mr. Martin "reports unable to leave home" and that the ALJ has misread this note.
Second, the ALJ wrote that the assessment of Mr. Martin as having a GAF score of twenty-one, "appears to be entirely based on the claimant's subjective complaints after his first referral to the South Bay Mental Health Facility." The ALJ found the GAF scores to be "conclusory" and afforded them little weight. Mr. Martin contends that this is incorrect, and that the GAF score was based upon objective evidence, including Mr. Martin's unkempt appearance, talkative and slurred speech, manifestations of anger, fear and anxiety, and auditory hallucinations.
With regard to the two alleged factual errors, neither warrants remand or reversal. Although it does appear that the ALJ misread the note accompanying the GAF score of forty, this is only a single word from a multipage report, which describes Mr. Martin's mental impairments. With regard to the April GAF score of twenty-one, there is support for the ALJ's view that the evidence in support of this was subjective. Much of the information on the forms accompanying that score appears to be self-reported and the report itself indicates that further psychiatric evaluation is necessary. The ALJ gave little weight to these scores because she found the evaluations disregarded the GAF scores as a whole and she found the GAF scores to be conclusory. Determinations of the weight and credence to be given to record evidence are within the discretion of the Commissioner, and this was a permissible determination. See Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) ("[T]he resolution of conflicts in the evidence is for the [Commissioner], not the courts.") (per curiam); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) ("[T]he resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [the Secretary], not for the doctors or for the courts.").
There are other reasons that Mr. Martin's contention does not warrant remand or reversal. GAF scores do not have a "direct correlation to the severity requirements" of the Social Security mental disorder listings. 65 Fed.Reg. 50746-01, 50764-65 (2000). They are only medical evidence that informs the Commissioner's judgment of whether an individual is disabled. See Rios v. Commissioner of Social Sec., 444 Fed. App'x 532 (3rd Cir. 2011). Moreover, a GAF score is an assessment of limited duration--relevant only "at the time of the evaluation." Diagnostic and Statistical Manual of Mental Disorders, 34 (4th Ed. 2000). For these reasons, courts have not found error when an ALJ did not address GAF scores in the record. See Rios, 444 Fed. App'x at 535; McFarland v. Astrue, 288 Fed. App'x 357, 359 (9th Cir. 2008). Given that disregarding the GAF score altogether would not be error, affording it little weight would not somehow introduce error.
Finally, even if more weight should have been accorded to the GAF scores, they do not contradict the result reached by the ALJ. Although scores of twenty-one and forty were recorded, those were, by definition, assessments of Mr. Martin's then existing mental state. In her assessment, Ms. Provencher reported her expectation that Mr. Martin's GAF score would be fifty-one at the time of discharge, a score that would indicate only moderate symptoms. See Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) ("Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)."). Looking at the three scores relevant to different time periods provides little if any information regarding Mr. Martin's mental state at the time of the denial of benefits in September 2011. Accordingly, they provide no meaningful indication that the ALJ's determination was not in accord with the substantial weight of the evidence.
C. Improper Weighing of the Medical Evidence Relating to Mir. Martin's Physical Impairments.
Mr. Martin contends that the ALJ misread the record evidence by stating that "while the plaintiff's ability to walk is more limited than normal because of his impairments, the plaintiff did state that he has been walking as part of a weight loss regime," when in fact the record demonstrated that Mr. Martin has difficulty walking and experiences pain when trying to exercise.
The ALJ found that Mr. Martin had the residual functional capacity to perform sedentary work. She accepted that the objective evidence supported the physical symptoms claimed by Mr. Martin, but that Mr. Martin's statements concerning the intensity, persistence and limiting effects of these symptoms were not credible to the extent that they are inconsistent with that residual functional capacity assessment. She recognized that Mr. Martin had been advised to avoid standing for prolonged periods of time due to swelling and hypertension, and she accepted that Mr. Martin's knee showed intense pain on tests of flexion and stress. She recognized that, although he had not been prescribed a cane, he reported using one as early as March 2010. She also recognized that Mr. Martin suffered from obesity, but found that there was no evidence that his obesity precluded work activities altogether and that, in any event, his obesity was accounted for in her residual functional capacity assessment.
Under the Social Security Guidelines, sedentary work is described as involving "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 416.967(a).
There is ample evidence in the record to support the conclusion that Mr. Martin is physically able to perform sedentary work. According to his own testimony, he is physically able to perform light household activities, such as washing dishes or doing laundry. This supports the ALJ's conclusion. "While a claimant's performance of household chores or the like ought not to be equated to an ability to participate effectively in the workforce, evidence of daily activities can be used to support a negative credibility finding." Teixeira v. Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010). See also Tavares v. Astrue, 2012 WL 669956, at *13 (D. Mass. Feb. 28, 2012) ("Though [the claimant's] daily activities do not, themselves, show an ability to work, they do support an ALJ's adverse credibility finding."). In addition, while there is evidence that Mr. Martin experienced difficulty with walking, there is also evidence in his medical records that he has, at times, walked for exercise. Moreover, according to his own testimony, he is able to walk one-hundred yards, stand for twenty minutes, and lift as much as thirty pounds. This provides substantial support to the ALJ's conclusion and is sufficient to sustain her determination. While some of the evidence might support a finding of disability, "the resolution of such conflicts in the evidence is for the Secretary." Rodriguez-Pagan v. Sec'y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam). It is not for this court to re-weigh the evidence presented during the administrative hearing.
D. Inappropriate Weight Given to Non-Treating Sources
Mr. Martin claims that the ALJ erred by according significant weight to non-treating sources, pointing out in particular that greater weight was given to the opinions of M. Berkowitz and Dr. Kellerman than to the opinion of Dr. Nineberg.
The First Circuit has explained that "[a] treating source's opinion on the question of the severity of impairment will be given controlling weight so long as it 'is well supported by medically acceptable clinical and laboratory diagnostics techniques and is not inconsistent with other substantial evidence in [the] record.'" Polanco-Quinones v. Astrue, 477 Fed. App'x 745, 746 (1st Cir. 2012) (citing 20 C.F.R. § 404.1527(d)(2)).
The problem with this argument is that Dr. Nineberg was not a treating physician. The reports that he submitted make clear that he evaluated Mr. Martin's mental condition for purposes of assisting in litigation. His reports are, in fact, addressed to Mr. Martin's former attorney and none describe any treatment plan. There is no other evidence that he provided any treatment to Mr. Martin. Accordingly, there is no reason that Dr. Nineberg should be afforded greater weight as a treating physician.
Moreover, if there exists any conflict between the opinions of Dr. Nineberg and those of M. Berkowitz and Dr. Kellerman, that conflict is to be resolved by the ALJ, even if Dr. Nineberg were a treating physician. See McGrath v. Astrue, 2012 WL 976026, at *4 (D.N.H March 22, 2013) (citing Tremblay v. Sec'y of Health & Human Servs. , 676 F.2d 11, 12 (1st Cir.1982)). The resolution of such a conflict adversely to the claimant should be affirmed if "that conclusion has substantial support in the record...," id., and, as noted above, "[i]t is within the Secretary's domain to give greater weight to the testimony and reports of medical experts who are commissioned by the Secretary," Keating, 848 F.2d at 275, n.1.
Mr. Martin also contends that the ALJ improperly gave great weight to Dr. Gopal's opinions. The ALJ wrote that she "accords great weight to the opinion of State Disability Determination Service Medical Consultant M.A. Gopal, M.D., who opined that the claimant's injuries received in a June 2010 auto accident were expected to by non-severe by June 2011 . . . The claimant's accident occurred in 2010 and X-rays taken shortly after the accident revealed only mild injuries. In addition, there is no other indication within the record that any injuries sustained in the accident were ongoing at the time of the accident." As the ALJ correctly stated, Dr. Gopal's opinion is uncontradicted by, and consistent with, the remainder of the record evidence regarding this accident. There is no error in according this opinion great weight.
E. Lack of Substantial Support for ALJ's Residual Functional Capacity Determination
Mr. Martin claims that the ALJ's residual functional capacity determination is not supported by substantial evidence.
As described above, the ALJ set forth, in considerable detail, the evidence presented during the hearing and the basis for her determination. While some of the evidence might support a finding of disability, "the resolution of such conflicts in the evidence is for the Secretary." Rodriguez-Pagan, 819 F.2d at 3. Here, "a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the ALJ's] conclusion." Rodriquez, 647 F.2d at 222.
IV. CONCLUSION
For the reasons set forth more fully above, I GRANT the Commissioner's motion to affirm (Dkt. No. 24) and DENY the claimant's motion for an order reversing that decision (Dkt. No. 15).
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DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE