Davis v. Colvin
Filing
21
Order that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/24/2016. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DERRICK A. DAVIS,
*
*
*
*
*
*
*
*
*
*
*
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
CIVIL ACTION NO. 14-00582-B
ORDER
Plaintiff Derrick A. Davis (hereinafter “Plaintiff”) seeks
judicial
review
of
a
final
decision
of
the
Commissioner
of
Social Security denying his claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et
seq.,
and
1381, et
seq.
On October 15,
2015, the
parties consented to have the undersigned conduct any and all
proceedings in this case.
(Doc. 15).
Thus, the action was
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.
Upon careful consideration
of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.
I.
Procedural History
Plaintiff protectively filed his applications for benefits
on October 12, 2011.
(Tr. 162).
Plaintiff alleged that he has
been disabled since September 1, 2009, due to degenerative disc
disease,
lumbar
depression,
(“PTSD”).
cholesterol,
and
hypertension,
post
traumatic
flat
stress
feet,
disorder
(Id. at 162, 168).
Plaintiff’s
request,
radiculopathy,
he
was
applications
granted
were
an
denied
and
administrative
upon
timely
hearing
before
Administrative Law Judge Katie H. Pierce (hereinafter “ALJ”) on
April 24, 2013.
(Id. at 44).
Plaintiff attended the hearing
with his counsel and provided testimony related to his claims.
(Id. at 47).
A vocational expert (“VE”) also appeared at the
hearing and provided testimony.
(Id. at 58).
On May 21, 2013,
the ALJ issued an unfavorable decision finding that Plaintiff is
not
disabled.
(Id.
at
37).
The
Appeals
Council
Plaintiff’s request for review on November 7, 2014.
2).
denied
(Id. at 1-
Therefore, the ALJ’s decision dated May 21, 2013, became
the final decision of the Commissioner.
Having
exhausted
his
administrative
timely filed the present civil action.
remedies,
(Doc. 1).
Plaintiff
The parties
waived oral argument on October 15, 2015 (Doc. 14), and agree
that this case is now ripe for judicial review and is properly
2
before
this
Court
pursuant
to
42
U.S.C.
§§
405(g)
and
1383(c)(3).
II.
Issue on Appeal
1. Whether the ALJ erred in rejecting the
opinions and findings of Plaintiff’s
examining psychologist, Dr. Joseph G.
Law, Jr.?
III. Factual Background
Plaintiff was born on March 28, 1984, and was twenty-nine
years of age at the time of his administrative hearing on April
24, 2013.
(Tr. 42, 162).
Plaintiff testified that he graduated
from high school and attended college.
(Id. at 47-48).
served in the military from 2002 to 2009. 1
2010,
following
his
military
barber in a barber shop.
ship fitter helper.
At
his
service,
(Id.).
He also
(Id. at 48).
Plaintiff
worked
In
as
a
He also worked in 2009 as a
(Id. at 49, 205).
hearing,
Plaintiff
testified
that
the
“primary
problems” that interfere with him working now are PTSD, back
pain, and the side effects of his medication (drowsiness).
at 49-50).
he
had
(Id.
According to Plaintiff, at the time of his hearing,
been
receiving
mental
health
treatment
for
his
PTSD
through the VA and had been seeing a therapist about once a week
for about a year and a half.
(Id. at 49).
1
With respect to his
In the military, Plaintiff served as a fuels propulsions mate,
refueling aircraft and boats. (Tr. 48).
3
back pain, Plaintiff testified that the pain in his lower back
was a seven or eight on a ten-point pain scale, after taking his
medication.
(Id.
at
55).
Plaintiff
testified
that
his
treatment has consisted of a cortisone injection in his back and
medications, including Lortab (for pain) and Baclofen (a muscle
relaxer).2
(Id. at 53-54, 57-58).
Plaintiff
testified
that
he
lives
with
his
wife,
children (ages eight, five, and two), and his sister.
51).
three
(Id. at
He does not help with the children or the house work.
(Id.).
His routine consists of getting up in the morning after
not sleeping well, brushing his teeth, taking a shower,
staying in his room.
(Id.).
Plaintiff testified that he can
lift approximately five pounds regularly.
cannot bend.
(Id.).
(Id. at 52).
53-54).
He
He
He can stand for about fifteen minutes and
can only walk about fifteen feet before needing to stop.
at
and
uses
a
cane
issued
by
the
(Id.
Veterans
Administration, and he has a wheelchair and a walker as well.
(Id. at 53, 190).
In his Function Report, Plaintiff stated that he needs help
2
Plaintiff’s medication list submitted to the Agency also
included aspirin, Ketorolac Tromethamine (pain), Lidocaine patch
(pain),
Lisinopril
(high
blood
pressure),
Lovastatin
(cholesterol), Meloxicam (pain), Methocarbamol (muscle relaxer),
Methylprednisolone
(anti-inflammatory),
Omeprazole
(reflux),
Prazosin (nightmares), Sertraline (depression), and Trazodone
(insomnia). (Tr. 171).
4
with his personal needs such as dressing, bathing, grooming, and
using the toilet.
(Id. at 185).
In addition, he does not drive
and cannot go out alone because he needs assistance getting in
and out of the car.
(Id. at 187).
He can count change but does
not shop and cannot handle a bank account or pay bills.
(Id.).
In addition, Plaintiff reported that he has a short attention
span, lacks focus, is forgetful, and has mood swings.
187-88).
He
no
longer
enjoys
hobbies
or
(Id. at
interests
occasionally socializes with family.
(Id. at 188).
problems
because
getting
irritability.
along
with
others
(Id. at 189).
of
but
He has
anger
and
However, he can interact with
authority figures “when need be” and has never been fired from a
job because of problems getting along with other people.
at 190).
to
Plaintiff does not handle stress well, but he is able
follow
written
activity involved.”
IV.
(Id.
and
spoken
instructions
“within
limits
of
(Id. at 189-90).
Analysis
A.
Standard of Review
In reviewing claims brought under the Act, this Court’s
role
is
a
determining
limited
1)
one.
whether
The
the
Court’s
decision
review
of
the
is
limited
to
Secretary
is
supported by substantial evidence and 2) whether the correct
5
legal standards were applied.
1520, 1529 (11th Cir. 1990).
3
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.
1986).
The
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s
findings
of
fact
affirmed if they are based upon substantial evidence.
must
be
Brown v.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,
703
F.2d
1233,
1239
(11th
Cir.
1983)
(holding
substantial evidence is defined as “more than a scintilla, but
less
than
a
preponderance”
and
consists
evidence as a reasonable person would
support
a
conclusion.”).
In
of
“such
relevant
accept as adequate to
determining
whether
substantial
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.
Chester v. Bowen, 792 F. 2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.
Discussion
An individual who applies for Social Security disability
benefits
must
prove
404.1512, 416.912.
his
or
her
disability.
20
C.F.R.
§§
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
3
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
6
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 not less than 12
months.”
42
U.S.C.
§§
404.1505(a),
416.905(a).
provide
five-step
a
423(d)(1)(A);
The
see
Social
sequential
also
20
Security
evaluation
C.F.R.
§§
regulations
process
determining if a claimant has proven his disability. 4
for
20 C.F.R.
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
4
The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
7
has not engaged in substantial gainful activity since May 2010, 5
and that he has the severe impairments of degenerative disc
disease
of
stenosis,
the
lumbar
spine,
posttraumatic
lumbar
stress
radiculopathy,
disorder
depressive disorder, and insomnia.
lumbar
(“PTSD”),
(Tr. 24).
major
The ALJ further
found that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals any of the listed
impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix
1.
(Id. at 25).
The
ALJ
concluded
that
Plaintiff
retains
the
residual
functional capacity (hereinafter “RFC”) to perform a range of
light work, except that Plaintiff “can sit for 6 hours in an 8hour workday and stand or walk for 6 hours in an 8-hour workday.
The claimant can lift and carry 10 pounds frequently, 20 pounds
occasionally.
The
crouch,
balance,
crawl,
claimant
claimant
can
claimant
cannot
climb
claimant
cannot
operate
and
occasionally
dangerous machinery.
can
occasionally
climb
push
ropes,
and
ramps
pull
ladders,
automotive
and
leg
or
equipment
stoop,
kneel,
stairs.
The
controls.
The
scaffolds.
or
work
The
around
The claimant can understand, remember, and
5
The ALJ found that Plaintiff had engaged in substantial gainful
activity working as a barber from December 2009 through May
2010, after his alleged onset date of September 1, 2009.
(Tr.
23). However, Plaintiff had not engaged in substantial gainful
activity since May 2010, when he stopped working as a barber.
(Id.).
8
carry out simple, routine, repetitive tasks.
The claimant can
understand to carry out detailed but uninvolved written or oral
instructions
involving
a
standardized situations.
with the public.
few
concrete
variables
in
or
from
The claimant cannot tolerate contact
The claimant needs to work independently but
can work in close proximity to coworkers and supervisors.
The
claimant can maintain concentration and attention for up to 2
hours at a time.
The claimant can occasionally adapt to changes
in the work setting.
criticism,
or
The claimant can tolerate supervision,
instructions
nonthreatening manner.
when
that
in
a
positive,
The claimant can perform goal oriented
work but not production pace work.”
determined
given
while
(Id. at 26).
Plaintiff’s
The ALJ also
medically
determinable
impairments could reasonably be expected to produce the alleged
symptoms, his statements concerning the intensity, persistence
and limiting effects of the alleged symptoms were only partially
credible for the reasons explained in the decision.
(Id. at
27).
Given Plaintiff’s RFC, the ALJ found that Plaintiff is not
capable
of
aircraft
testimony
performing
technician.
of
a
VE,
his
past
(Id.
at
the
ALJ
work
35).
as
a
ship
However,
concluded
fitter
and
utilizing
the
that
considering
Plaintiff’s residual functional capacity for a range of light
work, as well as his age, education and work experience, there
9
are other jobs existing in the national economy that Plaintiff
is
able
to
perform,
such
as
“garment
folder,”
“housekeeper/cleaner,” and “garment bagger,” all of which are
classified as light and unskilled.
(Id. at 36).
concluded that Plaintiff is not disabled.
The
Court
now
considers
the
Thus, the ALJ
(Id. at 36-37 ).
foregoing
in
light
of
the
record in this case and the issues on appeal.
1.
Issues
A. Whether the ALJ erred in rejecting the
opinions and findings of Plaintiff’s
examining psychologist, Dr. Joseph G.
Law, Jr.?
In
this
rejecting
case,
the
Plaintiff
opinions
argues
and
that
findings
the
of
ALJ
erred
his
in
examining
psychologist, Dr. Joseph G. Law, Jr., contained in a mental
status evaluation performed on April 17, 2013.
Specifically,
Plaintiff claims that the ALJ erred in assigning “little weight”
to
Dr.
Law’s
opinions
that
Plaintiff
is
unable
to
maintain
gainful employment as a result of marked limitations in social
and occupational functioning and in assigning “great weight” to
the opinions of consulting psychologist, Dr. Jennifer L. Adams,
Ph.D., that Plaintiff’s PTSD and depression cause only moderate
symptoms
and
instructions.
that
he
(Doc.
is
9
at
able
to
2;
Tr.
understand
32,
34,
and
447,
carry
610).
out
The
Commissioner counters that the ALJ properly weighed all of the
10
medical opinions in this case and that Dr. Law’s opinions are
inconsistent
with
the
substantial
thus, were properly discredited.
evidence
in
the
case
(Doc. 12 at 7).
and,
Defendant
further argues that the opinions of Dr. Adams are consistent
with
the
substantial
properly
afforded
reviewed
the
evidence
great
record
in
weight.
in
this
the
case
(Id.).
case,
the
and,
thus,
Having
Court
were
carefully
agrees
that
Plaintiff’s claim is without merit.
As part of the disability determination process, the ALJ is
tasked
with
examining,
weighing
and
the
opinions
non-examining
and
findings
physicians.
In
of
treating,
reaching
a
decision, the ALJ must specify the weight given to different
medical opinions and the reasons for doing so.
See Winschel v.
Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
The failure to do so is reversible error.
See Williams v.
Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009).
When
ALJ
weighing
the
opinion
of
a
treating
physician,
the
must give the opinions “substantial weight,” unless good
cause exists for not doing so.
Costigan v. Commissioner, Soc.
Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).
11
The opinion of “a
one-time examining physician — or psychologist,” on the other
hand,
is
not
physician.
entitled
to
the
same
deference
as
a
treating
Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,
2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).
An ALJ is also “required to consider the
opinions of non-examining state agency medical and psychological
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.’”
(11th
Cir.
Milner v. Barnhart,
2008)
404.1527(f)(2)(i)).
examining
sources
(unpublished)
“The
when
examining sources.”
275 Fed. Appx. 947, 948
ALJ
they
may
do
(citing
rely
not
on
20
C.F.R.
opinions
conflict
with
of
§
non-
those
of
Id. (citing Edwards v. Sullivan, 937 F.2d
580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining
physicians,
testimony
any
of
medical
good
cause
source
exists
when
it
to
is
discredit
contrary
to
the
or
unsupported by the evidence of record.
Phillips v. Barnhart,
357 F.3d 1232, 1240 (11th Cir. 2004).
“Good cause may also
exist
where
a
doctor’s
opinions
are
merely
conclusory,
inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”
Hogan v. Astrue, 2012 U.S.
Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
12
evidence supports a contrary conclusion.”
764
F.2d
834,
835
(11th
Cir.
1985)
Sryock v. Heckler,
(per
curiam)
(citation
omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,
212
(11th
Cir.
2010)
(The
ALJ
may
reject
any
medical
opinion if the evidence supports a contrary finding.).
In the present case, the record shows that at the request
of
Plaintiff’s
attorney,
Dr.
Law
conducted
a
mental
status
examination of Plaintiff on April 17, 2013, and administered
several tests, including the Post Traumatic Checklist, the Beck
Depression Inventory, and the Rey 16 Item Memory Test. 6
605).
and
(Tr.
Upon examination, Dr. Law found that Plaintiff was alert
oriented
to
time,
place,
and
person;
his
speech
was
understandable and coherent; his behavior was appropriate to the
situation; he denied hallucinations and delusions; his long term
memory was in tact; when asked to
follow simple, three-step
instructions, he complied and could remember all three steps;
and his test results did not indicate malingering.
606).
(Id. at
In addition, Dr. Law noted that Plaintiff’s mood was
depressed;
he
disappointment,
readily
admitted
confusion,
anger,
to
fear,
feelings
of
frustration,
anxiety,
tension,
and depression; and he reported having difficulty sleeping and
6
The ALJ initially questioned Dr. Law’s credentials but
ultimately treated Dr. Law as an acceptable medical source.
(Tr. 34-35).
13
horrible nightmares.
(Id.).
Dr. Law diagnosed Plaintiff with
Post Traumatic Stress Disorder (chronic due to military combat)
and Major Depressive Disorder (without psychosis, secondary to
chronic
PTSD
and
pain).
(Id.
at
609).
Dr.
Law
assigned
Plaintiff a GAF score of 457 and opined that Plaintiff’s “ability
to stay on task and to adapt to work settings is impaired by
chronic pain as well as his PTSD/major depression with marked
impairment.”
(Id. at 610).
Dr. Law opined that Plaintiff “is
not adapting well and suffers from depression secondary to both
pain and chronic PTSD.
His PTSD symptoms have worsened since
onset in September 2009 and are debilitating.
. . . [H]e is not
able to maintain gainful employment and has a total loss of
access to the competitive labor market.”
(Id.).
Dr. Law also
completed a Mental RFC Questionnaire, finding that Plaintiff has
7
A GAF score of 45 indicates serious symptoms.
GAF (Global
Assessment of Functioning) is a numeric scale (0 through 100)
used by mental health clinicians that measures a patient’s
overall level of psychological, social, and occupational
functioning on a hypothetical continuum.
A GAF score of 41-50
indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or serious social
dysfunction (e.g., no friends, unable to keep a job).
A GAF
score of 51-60 suggests 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). A GAF score of
61-70 is indicative of mild symptoms (e.g., depressed mood and
mild insomnia) or some difficulty in social, occupational, or
school functioning (e.g., occasional truancy, or theft within
the household), but generally functioning pretty well, has some
meaningful interpersonal relationships. See http://www.gafscore
.com.
14
frequent deficiencies in concentration, persistence, or pace,
repeated
expected
episodes
of
decompensation,
and
marked
limitations in social functioning, understanding, carrying out,
and
remembering
supervision,
instructions,
co-workers,
responding
and
work
appropriately
pressures,
to
performing
repetitive tasks, and completing work related activities.
(Id.
at 611-12).
As the ALJ found, Dr. Law’s opinions related to Plaintiff’s
mental
impairments,
limitations
in
including
understanding,
that
Plaintiff
carrying
out,
and
has
marked
remembering
instructions, that he cannot concentrate or stay on task, and
that his PTSD symptoms are debilitating, are undermined by his
own findings that Plaintiff was alert and oriented, that his
speech
was
understandable
and
coherent,
that
his
long
term
memory was completely in tact, that he could read and follow a
command in a sentence, that he could remember three words and
repeat them back to the examiner, and that when asked to follow
simple, multi-step instructions, he complied and could remember
all of the steps.
In
addition,
(Id. at 606).
Dr.
Law’s
opinions
related
to
Plaintiff’s
physical impairments, i.e., Plaintiff’s impairment from chronic
pain which contributes significantly to his depression and his
inability to stay on task and to adapt to work settings, are not
based on any physical findings and are inconsistent with his Dr.
15
Law’s
own
acknowledgement
that
Plaintiff’s
treatment
records
showed only lumbar sprain and degenerative disk disease at L4-L5
causing “mild” stenosis.
regarding
the
inconsistent
case.
(Id. at 607, 610).
severity
with
of
the
Plaintiff’s
remaining
Dr. Law’s opinions
chronic
substantial
pain
are
evidence
also
in
the
For example, Dr. Law references the MRI taken in June
2011 which showed degenerative disk disease at L4-5 causing only
“mild”
central
stenosis.
canal
stenosis
and
bilateral
(Id. at 239, 571) (emphasis added).
neuroforaminal
In addition, x-
rays of Plaintiff’s lumbar spine taken in November 2011 show
“normal position and alignment,” “no disc space narrowing,” “no
spondylolysis,” and “normal lumbar spine.”
a
physician’s
complaints
“lumbar
of
assistant
back
strain,
functional
at
pain
VA
further
resolved”
limitation;”
the
with
“DDD
(Id. at 228).
who
evaluated
opined
no
L4-5
that
Plaintiff’s
Plaintiff
radiculopathy
lumbar
spine”
radiculopathy and only “mild functional limitation.”
240-41).
treating
The
ALJ
physicians
correctly
at
the
noted
VA
that
nor
neither
his
Also,
and
with
had
“no
no
(Id. at
Plaintiff’s
non-VA
treating
orthopedist had imposed any functional limitations related to
Plaintiff’s
back.
(Id.
at
34,
594).
To
the
contrary,
Plaintiff’s recommended treatment consisted of physical therapy,
injections, and medications.
(Id. at 553, 566, 573, 580, 594).
Likewise, Dr. Law’s opinions related to Plaintiff’s mental
16
impairments
are
inconsistent
evidence in this case.
with
the
remaining
substantial
The record shows that at the request of
the Agency, Plaintiff was examined by psychological consultant,
Dr. Jennifer L. Adams, Ph.D., on January 10, 2012.
445).
Dr.
Adams
observed
that
Plaintiff
(Id. at
walked
“with
discomfort” and was using a walker, but, otherwise, he appeared
“strong
and
in
good
health,”
and
“his
posture
was
erect.”
(Id.).
Dr. Adams noted that Plaintiff’s speech was normal; his
concentration
and
attention
were
normal;
he
was
alert
and
oriented in all spheres; he was able to count backward from 20
by 2s; he was able to spell the word WORLD backward; he was able
to solve a simple mathematical equation involving change-making;
his memory was normal; he could recall four digits forward and
three digits backward; he could recall three objects immediately
and all three after five minutes; he could recall the events of
the day of the evaluation and the preceding few days; he could
recall
remote
events
as
well;
his
fund
of
information
was
normal; he could recall items in the news; he could name the
current president and the preceding president; his abstraction
was
normal;
he
could
interpret
proverbs
and
do
simple
similarities; his thought processes were normal; there was no
confusion; his thought content was normal; and his judgment and
insight
were
adequate.
(Id.
at
17
445-46).
Dr.
Adams
noted,
however,
that
Plaintiff’s
mood
irritable, and his affect was flat.
was
dysphoric
and
somewhat
(Id.).
Plaintiff reported to Dr. Adams that his activities are
limited.
According to Plaintiff, he largely spends the day in
bed watching television, although he is able to take care of his
activities of daily living with “some help” from his wife.
(Id.
at 446).
Dr.
Adams
diagnosed
Plaintiff
with
PTSD
and
Depressive Disorder and assigned a GAF score of 55. 8
447).
Major
(Id. at
Dr. Adams opined that Plaintiff’s prognosis is “fair” and
that he “would be expected to respond to mental health services,
if he is willing to engage with the therapist.”
(Id.).
Dr.
Adams summarized her evaluation as follows:
[Plaintiff] is a 27 year-old veteran who was
injured in the war in Iraq and Afghanistan.
In addition to physical injuries he seems to
have suffered PTSD.
He also seems to have
developed
some
depression,
likely
in
reaction to the adjustments he is having to
make in his lifestyle as a result of his
physical injuries and PTSD.
[Plaintiff’s]
intellectual functioning is likely in the
Average range and he is able to manage any
benefits he
might obtain.
His memory and
concentration seem to be somewhat impaired,
possibly from anxiety and depression or
8
As previously noted, a GAF score of 55 indicates 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).
See http://www.gafscore.
com.
18
medication. There is not a reference in the
medical
records
to
a
head
injury.
[Plaintiff] is not functioning as well as he
probably should be and likely will in the
future with mental health treatment.
He is
able
to
understand
and
carry
out
instructions, but he is probably not able to
remember instructions reliably at this time.
[Plaintiff] is probably not able to respond
appropriately to supervision, co-workers and
work stresses at this time.
(Id. at 447) (emphasis in original).9
While both Dr. Law and Dr. Adams diagnosed Plaintiff with
PTSD
and
Major
Plaintiff’s
Depressive
mental
debilitating
inconsistent
impairments
limitations
with
Disorder,
Dr.
that
have
Dr.
resulted
preclude
Adams’
Law’s
him
findings
opinion
in
from
that
that
marked
working
and
is
Plaintiff’s
concentration, attention, memory, fund of information, thought
processes,
adequate;
content,
that
instructions
he
judgment,
is
(although
able
he
and
to
may
insight
understand
not
be
are
normal
and
carry
out
and
able
to
remember
instructions reliably); that his prognosis is fair; that his
symptoms from his PTSD and depression are moderate; and that he
would be expected to respond to mental health services.
(Id. at
446-47).
9
Dr. Adams does not describe the nature of Plaintiff’s injuries
while serving in the military, but, at his hearing, Plaintiff
testified that he was working on a flight deck when a fuel hose
got caught on the deck and snatched him off his feet. Plaintiff
testified that he landed on his back and has been having
problems “ever since then.” (Tr. 50, 506).
19
As
the
ALJ
found,
Dr.
Adams’
opinions
that
Plaintiff’s
symptoms are moderate and that he is able to understand and
carry
out
instructions
treatment
records,
treatment
for
his
are
which
mental
consistent
reflect
health
a
with
Plaintiff’s
conservative
impairments
and
level
VA
of
essentially
normal mental status examinations with only moderate depression
and anxiety.
Patricia
(Id. at 33-34).
Schlottman,
a
social
Indeed, the treatment notes of
worker
who
began
therapy
with
Plaintiff in 2012 for PTSD, repeatedly noted that Plaintiff was
only “moderately” depressed, 10 that his eye contact, insight, and
judgment were good, that his thought processes were clear, and
that his memory was intact.
506,
508,
510,
514,
(Id. at 481, 483, 489, 493-94, 503,
518-19,
522,
525,
531,
554,
734).
In
addition, Plaintiff’s treatment records show that he has never
required
in-patient
psychiatric
treatment
treatment for any mental health issue.
Although
Plaintiff
criticizes
or
emergency
room
(Id.).
the
ALJ
for
referencing
Plaintiff’s VA treatment records (including the fact that no
10
Early in the evaluation process at the VA, Plaintiff was
administered the Beck Depression Inventory II test, and he
scored in the “severely depressed” range.
(Tr. 526).
Subsequent to that time and throughout his treatment at the VA,
the staff repeatedly found him to be only “moderately”
depressed.
(Id. at 481, 483, 489, 493-94, 503, 506, 508, 510,
514, 518-19, 522, 525, 531, 554, 665, 672, 699, 708).
On
November 29, 2012, he was observed to be only “mildly”
depressed. (Id. at 674).
20
treatment source at the VA has ever found that Plaintiff is
disabled due to a mental impairment, nor has Plaintiff received
a service connection disability for PTSD or depression), the
fact remains that Plaintiff’s treatment records at the VA are
relevant and do reflect a level of treatment that is consistent
with Dr. Adam’s opinions detailed above and inconsistent with
Dr. Law’s opinions that Plaintiff’s mental health impairment is
debilitating.
Based
on
the
foregoing,
the
Court
finds
that
the
ALJ
assigned the appropriate weight to both Dr. Law’s and Dr. Adams’
opinions.
In addition, the Court finds that the ALJ’s RFC fully
accommodates Plaintiff’s PTSD and depression (specifically, Dr.
Adams’
findings
that
Plaintiff
may
not
be
able
to
reliably
remember instructions or respond appropriately to supervision,
co-workers, or work stresses)
11
by limiting Plaintiff to goal
oriented work with only occasional changes in the work setting,
carrying out uninvolved written or oral instructions with few
concrete
variables,
and
limiting
his
supervisors, co-workers, and the public. 12
11
Interestingly,
problems getting
being terminated
with others. (Tr.
interaction
with
In addition, the
as noted by the ALJ, Plaintiff reported no
along with authority figures and denied ever
from a job because of problems getting along
39, 194).
12
As previously discussed, the ALJ limited Plaintiff’s mental
RFC as follows: “The claimant can understand, remember, and
carry out simple, routine, repetitive tasks;” “can understand to
21
Court finds that the ALJ’s RFC fully accommodates Plaintiff’s
physical impairments related to his back pain. 13
(Id. at 26).
Accordingly, Plaintiff’s claim must fail.
V.
Conclusion
For
the
reasons
set
forth
herein,
and
upon
careful
consideration of the administrative record and memoranda of the
parties,
it
is
hereby
ORDERED
that
the
decision
of
the
Commissioner of Social Security denying Plaintiff’s claim for a
period
of
disability,
disability
insurance
benefits,
and
supplemental security income be AFFIRMED.
DONE this 24th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
carry out detailed but uninvolved written or oral instructions
involving a few concrete variables in or from standardized
situations;” “cannot tolerate contact with the public;” “needs
to work independently but can work in close proximity to
coworkers and supervisors;” “can maintain concentration and
attention for up to 2 hours at a time;” “can occasionally adapt
to changes in the work setting;” “can tolerate supervision,
criticism,
or
instructions
when
given
in
a
positive,
nonthreatening manner;” and “can perform goal oriented work but
not production pace work.” (Tr. 26).
13
The ALJ limited Plaintiff’s physical RFC as follows: Plaintiff
“can sit for 6 hours in an 8-hour workday and stand or walk for
6 hours in an 8-hour workday.
The claimant can lift and carry
10 pounds frequently, 20 pounds occasionally. The claimant can
occasionally stoop, kneel, crouch, crawl, balance, and climb
ramps and stairs.
The claimant can occasionally push and pull
leg controls.
The claimant cannot climb ropes, ladders, or
scaffolds. The claimant cannot operate automotive equipment or
work around dangerous machinery.” (Tr. 26).
22
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