New England Biz Law Update
The denial of a plaintiff’s application for Social Security Disability Insurance benefits and Supplemental Security Income should be reversed and remanded in light of an administrative law judge’s faulty assessment of exertional and nonexertional “residual functional capacity,” according to the recommendation of a federal magistrate judge.
Plaintiff Ruben M.’s exertional RFC was wrongly based on the opinion of an agency physician who completed his file review prior to an MRI that evidenced a worsening of the claimant’s spinal impairment, concluded U.S. Magistrate Judge Patricia A. Sullivan in Rhode Island.
Further, Sullivan found that the administrative law judge also incorrectly analyzed the evidence as to nonexertional capabilities.
“I find that the ALJ erred in setting nonexertional RFC limits … by ignoring the state-agency psychologist’s opinion that [the plaintiff] is not capable of more than simple tasks or of interacting appropriately with the general public,” she wrote, adding that the opinion of a treating mental health nurse was inappropriately discounted as contrary to other evidence in the record.
The 21-page decision is Ruben M. v. Saul.
Counsel for the plaintiff is Kelly M. McKenna-Cournoyer of Providence, who declined to comment during the exception period. Representing the Social Security Administration are Luis A. Pere and Natasha Oeltjen, both of the agency’s Boston office. They were not available to discuss Sullivan’s recommended disposition prior to press deadlines.
Physical, mental health issues
Plaintiff Ruben M. experienced a “chaotic” life in both Puerto Rico and Rhode Island, marked by getting shot, serving time for an armed robbery conviction, and sporadic employment.
In January 2015, when the plaintiff was 44, he was again shot, this time in the left thigh. The wound was complicated by an infection and embedded shrapnel.
Based on that injury and various mental health disorders, he previously had applied for disability benefits but was twice denied at the administrative phase.
With ongoing pain in his back and left leg, the plaintiff filed the present disability insurance benefits and SSI claims in January and February 2017. After reviewing the treatment record, Dr. Donn Quinn, the agency’s physician expert, determined in June 2017 that the plaintiff was somewhat exertionally limited but could lift up to 50 pounds occasionally, 25 pounds frequently, and could sit, stand or walk for up to six hours in a normal workday.
However, in February 2018, an MRI of the plaintiff’s spine established for the first time that he had a disc bulge with “moderately severe foraminal narrowing,” for which he began a course of injections.
During examinations by various providers in 2018, the plaintiff was observed to have an impaired gait, tenderness, difficulty walking, and an inability to ascend stairs. None of the spinal evidence was seen by Quinn.
The application also focused on the claimant’s mental health issues. A psychiatric evaluation in June 2016 by Marol Kerge, a nurse specialist, indicated that the plaintiff suffered from intrusive thoughts, depressed mood, irritability, poor sleep, flashbacks and nightmares. For the remainder of that year, he continued to see mental health professionals, who recorded “abnormal findings.”
By January 2017, Ruben M.’s depression had worsened, culminating in a week-long stay at Butler Hospital. After his discharge, his mental health problems persisted throughout the year.
In the opinion of the agency’s mental health file reviewer, Dr. Albert Hamel, the plaintiff suffered from severe depression and PTSD and had the ability only for simple tasks without public interaction.
Kerge made “very troubling” findings in August 2017, observing that he demonstrated an irritable mood, delusions, suspicious thoughts and sleep disturbances. But in December 2017 and February 2018, her findings were more normalized.
Shortly before the ALJ hearing in April 2018, Kerge submitted an RFC opinion that the claimant was moderately severely limited in his ability to relate to other people in daily activities, including co-workers, and that his impairments would cause workday disruptions.
After being denied benefits, the plaintiff filed the present motion to reverse, contending that the ALJ set exertional and nonexertional RFC limits not supported by the totality of the evidence.
Evidence disregarded
Sullivan began her analysis by explaining that, under 20 C.F.R. §404.1527, the regulation applicable to disability insurance benefits and SSI claims filed prior to March 27, 2017, “substantial weight should be given to the opinions, diagnosis and medical evidence of a treating physician unless there are good reasons to do otherwise.”
Under that same rule, Sullivan continued, a treating source who is not a licensed physician or psychologist is not considered an “acceptable medical source” who may provide a medical opinion entitled to controlling weight.
However, an “other source,” such as a nurse or a licensed clinical social worker, “may provide important insight into the severity of the impairment, including its impact on the individual’s ability to function.”
With that framework laid out, Sullivan turned her attention to the ALJ’s rejection of Kerge’s opinion concerning the plaintiff’s mental-health-based nonexertional limitations.
She agreed with several of the “well-founded” arguments for reversal.
For example, Sullivan concurred that the ALJ in setting RFC limits wrongly relied on the “inaccurate finding” that virtually all of the mental evaluations were “within normal limits,” and that the ALJ further “cherry-picked” from Kerge’s report and adopted limitations that aligned with his own pre-formed view of the case.
“Here, the ALJ rejected Nurse Kerge’s opinion that plaintiff is moderately severely impaired in relating to other people, including co-workers, and has mental impairments that would cause workday interruptions and absences,” Sullivan wrote.
She questioned the ALJ’s findings that those limitations were inconsistent with other evidence in the record and that the plaintiff’s mental evaluations were largely “normal.” Sullivan found that those findings were not viable, as both the nurse’s notes and the treating record repeatedly referred to irritability, suspiciousness, hearing voices, depression and anxiety, and that the two examinations making “normal” findings were outliers.
“Other evidence — including plaintiff’s extremely spotty employment history, his criminal involvement, his multiple gunshot wounds, his report of being fired at least once because of an argument, and the Social Security field office observation of plaintiff’s agitation and anger during the application process — all corroborates the Kerge medical findings,” Sullivan wrote. “The ALJ’s foundational … mantra that ‘mental status evaluations were within normal limits’ is simply wrong.”
Sullivan was also “troubled” by the ALJ’s apparent disregard of the opinion of the agency psychologists.
Considering those material errors, Sullivan recommended a remand for further examination of the nonexertional RFC.
She drew a similar conclusion with the exertional RFC assessment as the ALJ seemingly ignored abnormal findings in the MRI and treatments that came after Quinn’s file review.
“[T]his is a classic case where ‘the state-agency physicians were not privy to parts of [the plaintiff’s] medical record[, which] detracts from the weight that can be afforded their opinions. … [A]n ALJ cannot rely on a file-review opinion if post-review developments reflect a significant worsening of the claimant’s condition because such an opinion does not amount to substantial evidence,” Sullivan wrote.
