Norman v. Astrue
Filing
27
MEMORANDUM OPINION. Signed by Magistrate Judge William Connelly on 08/03/2012. (nk, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
______________________________
PAMELA NORMAN
)
)
Plaintiff,
)
)
v.
)
Civil Action No. WGC‐10‐307
)
MICHAEL ASTRUE
)
Commissioner of Social Security
)
)
Defendant.
)
______________________________)
MEMORANDUM OPINION
Plaintiff Pamela Norman (“Ms. Norman” or “Plaintiff”) brought this action pursuant to
42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying her claims for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act, 42 U.S.C. §§ 401‐
433, 1381‐1383f. The parties consented to a referral to a United States Magistrate Judge for all
proceedings and final disposition. See ECF Nos. 3, 7‐8.1 Pending and ready for resolution are
Plaintiff’s Motion for Summary Judgment, or in the alternative, Motion for Remand (ECF No. 19)
and Defendant’s Motion for Summary Judgment (ECF No. 26). No hearing is deemed necessary.
See Local Rule 105.6 (D. Md. 2011). For the reasons set forth below, Plaintiff’s Alternative
Motion for Remand will be granted and Defendant’s Motion for Summary Judgment will be
denied.
1
The case was subsequently reassigned to the undersigned.
1
1. Background.
On July 11, 2007 Ms. Norman filed applications for DIB2 and SSI alleging a disability
onset date of April 8, 2007 due to mental problems, back and knee pain and four (heat‐related)
strokes. See R. at 132‐34, 135‐39, 181. Ms. Norman’s applications were denied initially on
September 26, 2007. R. at 81‐84. The case record does not contain Ms. Norman’s request for
reconsideration and the Social Security Administration’s denial.3 On November 8, 2008 Ms.
Norman requested a hearing before an Administrative Law Judge (“ALJ”). R. at 127‐31. A
hearing was convened on January 29, 2009. Ms. Norman requested a postponement because
she had hired a lawyer the previous day. The request to postpone was granted. No testimony
was taken. R. at 70‐74. On April 17, 2009 an ALJ convened a hearing. R. at 22‐69. Ms. Norman
was represented by a counsel at this hearing. The ALJ obtained testimony from Ms. Norman
and a vocational expert (“VE”). In the July 29, 2009 decision the ALJ found Ms. Norman is not
disabled within the meaning of the Act. R. at 21. Ms. Norman thereafter requested a review of
the hearing decision on August 20, 2009. R. at 6‐7. On December 15, 2009 the Appeals Council
denied Ms. Norman’s request for review, R. at 1‐3, thus making the ALJ’s determination the
Commissioner’s final decision.
2. ALJ’s Decision.
The ALJ evaluated Ms. Norman’s claims for DIB and SSI using the sequential evaluation
process set forth in 20 C.F.R. §§ 404.1520, 416.920. Ms. Norman bears the burden of
2
Ms. Norman “has acquired sufficient quarters of coverage to remain insured through March 30, 2010.” R. at 11.
See also R. at 14, 175.
3
The case record contains two copies of Form SSA-831-C3, Disability Determination and Transmittal at the initial
level. R. at 75-76. Omitted from the case record is the Disability Determination and Transmittal form for the
reconsideration level.
2
demonstrating her disability as to the first four steps. At step five the burden shifts to the
Commissioner. If Ms. Norman’s claims fail at any step of the process, the ALJ does not advance
to the subsequent steps. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At step one the ALJ
found Ms. Norman has not engaged in substantial gainful activity since April 8, 2007, the
alleged onset date of disability. R. at 14. The ALJ concluded at step two that Ms. Norman’s
“obesity, osteoarthrosis, substance abuse disorder (alcohol and drugs), borderline intellectual
functioning, depressive disorder and personality disorder” are severe impairments. Id. In
accordance with 20 C.F.R. §§ 404.1520a, 416.920a, the ALJ followed a special technique to
evaluate the severity of Ms. Norman’s mental impairments.
To satisfy the “paragraph B” criteria of Listings 12.04,4 12.085 and 12.096 (“paragraph D”
criteria of Listing 12.057), Ms. Norman must demonstrate at least two of the following: marked
restriction of activities of daily living, marked difficulties in maintaining social functioning,
marked difficulties in maintaining concentration, persistence or pace, or repeated episodes of
decompensation, each of extended duration. In reviewing the evidence of record including Ms.
Norman’s testimony, the ALJ found Ms. Norman has a mild restriction of activities of daily
living. “The claimant is totally independent in all activities of daily living and able to participate
in a wide variety of activities including household chores, shopping and caring for personal
needs.” R. at 14.
4
Affective Disorders.
5
Personality Disorders.
6
Substance Addiction Disorders.
7
Mental Retardation.
3
Regarding social functioning, the ALJ found Ms. Norman has moderate difficulties. “Ms.
Norman has friends and family with whom she socializes. She has been able to maintain a long‐
term relationship with her boyfriend. She is able to interact appropriately with the public while
shopping and running errands.”8 R. at 15. The ALJ found Ms. Norman has moderate difficulties
with concentration, persistence or pace. “The claimant is able to follow simple instructions,
and concentrate sufficiently to play cards, follow movie and television plots and travel
independently.” Id. Finally, concerning episodes of decompensation, the ALJ found Ms.
Norman experienced no episodes of an extended duration. Because Ms. Norman’s mental
impairments do not at least cause two marked limitations or one marked limitation and
repeated episodes of decompensation, the “paragraph B” (“paragraph D” for Listing 12.05)
criteria have not been satisfied. Id.
Next the ALJ considered whether the “paragraph C” criteria for Listings 12.04, 12.08 and
12.09 have been met. He found those criteria unsatisfied for the following reasons.
The claimant has not been hospitalized for psychiatric treatment.
She is able to live independently in the community and does not
require a highly supervised or structured environment.
R. at 15.
Thereafter the ALJ turned his attention to Listing 12.05. Ms. Norman will satisfy the
severity for this disorder if she meets the requirements in paragraphs A, B, C or D. The ALJ
already determined that Ms. Norman does not meet the requirements of paragraph D. See
infra. Paragraph A requires “[m]ental incapacity evidenced by dependence upon others for
personal needs (e.g., toileting, eating, dressing, or bathing) and inability to follow directions,
such that the use of standardized measures of intellectual functioning is precluded[.]” 20 C.F.R.
8
The Court notes this description fails to identify any activities or behaviors warranting a moderate rating.
4
404, Subpt. P, App. 1 § 12.05(A) (2009). The ALJ determined Ms. Norman does not meet the
requirements of paragraph A. “[T]he claimant has been able to work at the substantial gainful
activity level for several years, take care of her home and family, and generally adapt to her
environment and society. There is no evidence of any deficits in adaptive behavior.” R. at 15.
To meet the requirements of 12.05, paragraph B, Ms. Norman must produce evidence
of “[a] valid verbal, performance, or full scale IQ of 59 or less[.]” 20 C.F.R. 404, Subpt. P, App. 1
§ 12.05(B) (2009). For paragraph C Ms. Norman must produce evidence of “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental impairment
imposing an additional and significant work‐related limitation of function[.]” Id. 404, Subpt. P.
App. 1, § 12.05(C). The ALJ found Ms. Norman met neither paragraph B nor paragraph C
because “[t]he claimant’s IQ scores are all over 70 and there is no evidence that the claimant’s
significant subaverage intellectual functioning manifested prior to age 22.” R. at 15.
Having completed the special technique for evaluating Ms. Norman’s mental
impairments, the ALJ resumed the sequential evaluation process.
At step three the ALJ
determined Ms. Norman does not have an impairment or combination of impairments that
meets or medically equals the criteria of any of the listed impairments described in 20 C.F.R.
Part 404, Subpart P, Appendix 1. R. at 14. The ALJ specifically considered Listing 1.019 with
regard to Ms. Norman’s osteoarthrosis, Social Security Ruling 02‐1p10 with regard to Ms.
Norman’s obesity and Listings 12.04, 12.05, 12.08 and 12.09 regarding Ms. Norman’s
9
Category of Impairments, Musculoskeletal.
10
Titles II and XVI: Evaluation of Obesity.
5
depressive disorder, borderline intellectual functioning, personality disorder and substance
abuse disorder (alcohol and drugs).
The ALJ then proceeded to determine Ms. Norman’s residual functional capacity
(“RFC”). The ALJ found Ms. Norman can perform light work as defined in the Regulations
except “she cannot climb ropes, ladders or scaffolds. She can occasionally climb ramps and/or
stairs, balance, crawl, crouch, stoop and/or squat. She is limited to simple, routine work
working with things more than with people. Work should be more self‐paced/goal oriented
versus production rate type work.” R. at 15‐16. At step four the ALJ found Ms. Norman is not
capable of performing her past relevant work as a nurse’s assistant, a fast food cashier, a deli
worker, a pizza delivery driver, a dishwasher and a cook due to her exertional and
nonexertional limitations. R. at 20.
Proceeding to step five, the ALJ considered Ms. Norman’s age (47 years old on the
alleged onset date of disability; defined as a younger individual age 18‐49), education (high
school), past work experience (transferability of job skills is not material) and her RFC (light
work with limitations). The ALJ found the Social Security Administration met its burden of
proving Ms. Norman is capable of performing other work11 that exists in significant numbers in
the national economy, relying on the testimony of the VE. R. at 20, 62. Accordingly, the ALJ
concluded that Ms. Norman is not disabled within the meaning of the Act. R. at 21.
3. Standard of Review.
The role of this Court on review is to determine whether substantial evidence supports
the Commissioner’s decision and whether the Commissioner applied the correct legal
11
A finish inspector, a table worker and a grader/sorter.
6
standards. 42 U.S.C. § 405(g); Pass v. Chater, 65 F.3d at 1202; Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a
scintilla, but less than a preponderance, of the evidence presented, Shively v. Heckler, 739 F.2d
987, 989 (4th Cir. 1984) (citations omitted), and it must be sufficient to justify a refusal to direct
a verdict if the case were before a jury. Hays, 907 F.2d at 1456. This Court cannot try the case
de novo or resolve evidentiary conflicts, but rather must affirm a decision supported by
substantial evidence. Id.
4. Discussion.
Plaintiff asserts the ALJ erroneously evaluated the opinion of her treating physician
(psychiatrist) Dr. Lisa Green‐Paden. The ALJ accorded moderate weight to the opinions of Dr.
Green‐Paden. Plaintiff argues the ALJ “failed [to] explain which portions of her opinions he was
according weight to, and failed to explain how he incorporated any of her opinions into his
residual functional capacity assessment.” ECF No. 19‐1 at 9. Plaintiff further contends,
“although Dr. Green‐Paden’s assessment contains numerous opinions assessing various work‐
related functions, the Administrative Law Judge failed to assess or evaluate any of these
opinions in assessing the Plaintiff’s residual functional capacity.” Id. In short, Plaintiff asserts
the ALJ’s evaluation of Dr. Green‐Paden’s opinions defies review. Under such circumstances a
remand is warranted.
In the Defendant’s cross‐motion for summary judgment the Commissioner notes the ALJ
properly declined to give controlling weight to the opinions of Dr. Green‐Paden. According to
7
the Commissioner the ALJ articulated the reasons for the weight assigned. “The ALJ noted,
among other things, that Dr. Green‐Paden had seen Ms. Norman only four times after the initial
evaluation, and only three times before she completed the form at issue here.” ECF No. 26‐1 at
8 (citation omitted). The Commissioner further contends “the ALJ explained that he was
rejecting Dr. Green‐Paden’s assessment that Ms. Norman had experienced work‐related
limitations since at least 1983‐correctly noting that this doctor did not begin treating Ms.
Norman until May 2008 and thus could not assess with any assurance her patient’s condition so
long before that time.” Id. at 8‐9. According to the Commissioner the ALJ agreed with Dr.
Green‐Paden’s assessment that Ms. Norman had no episodes of decompensation and only had
moderate difficulties in social functioning. The ALJ cited Dr. Green‐Paden’s opinion that Ms.
Norman’s GAF was 55. According to the Commissioner, this rating indicates moderate
symptoms and thus is consistent with the ALJ finding Ms. Norman had moderate limitations in
both social functioning and in concentration, persistence and pace. Moreover, “Dr. Green‐
Paden’s opinion that Ms. Norman has great difficulty making decisions and following complex
instructions is consistent with the ALJ’s finding that Ms. Norman is limited to simple, routine
work (which will not require her to make decisions or follow complex instructions).” Id. at 9
(citations omitted). Thus, the ALJ assigning moderate weight to Dr. Green‐Paden’s opinions
was appropriate.
In the decision the ALJ’s evaluation of Dr. Green‐Paden’s opinions states:
The opinion of Dr. Green‐Paden is given moderate weight. It is
not totally consistent with the longitudinal records or the
claimant’s activities of daily living and appears based more on the
8
claimant’s self reports12 than on any objective
medical/psychological evaluation or evidence. The claimant had
only attended three sessions13 with Dr. Green‐Paden at the time
that the doctor had completed the form and as was true with
almost all of her interviews with care providers, the claimant’s self
reports contained inconsistencies and non‐supported statements.
Dr. [Green‐] Paden did not begin treating the claimant until May
2008 and cannot possibly state with any assurance that the
claimant has had mental impairments and work related
limitations since 1983.
R. at 19.
Contrary to the Commissioner’s assertions, the ALJ’s evaluation only states, by
examples, why he disagrees with Dr. Green‐Paden’s opinions. Nowhere in the above evaluation
does the ALJ cite any instances where he agrees with Dr. Green‐Paden’s opinions. Additionally,
the ALJ fails to be specific about how Dr. Green‐Paden’s opinions are not totally consistent with
the longitudinal records or Ms. Norman’s activities of daily living. This Court, as a reviewing
authority, lacks specific information to assess on what grounds the ALJ gave favorable
consideration to Dr. Green‐Paden’s opinions because the ALJ fails to identify them. The
instances cited by the Commissioner in his brief are post hoc rationalizations14 not articulated
by the ALJ. “[Even if] there is enough evidence in the record to support the ALJ’s decision, the
principles of administrative law require the ALJ to rationally articulate the grounds for [his]
decision and confine [this court’s] review to the reasons supplied by the ALJ.” Steele v.
12
Portions of Scuddy F. Fontenelle, III, Ph.D.’s opinion is based on Ms. Norman’s self-reports. For instance, under
Diagnostic Impressions, Axis I, Scuddy F. Fontenelle, III, Ph.D. records “Major Depression Disorder,
Recurrent/Alcohol Dependence, by History[.]” R. at 226 (emphasis added).
13
Dr. Green-Paden saw Ms. Norman two more times compared to Scuddy F. Fontenelle, III, Ph.D., the
psychological consultant.
14
“A post-hoc rationalization is a new rationale for an agency action that is put forth for the first time after the
action is final.” Dow AgroSciences LLC v. National Marine Fisheries Serv., 821 F. Supp. 2d 792, 799 (D. Md.
2011).
9
Barnhart, 290 F.3d 936, 941 (7th Cir. 2002). The Court finds Plaintiff is correct in asserting the
ALJ’s evaluation defies review.
The case record contains three ratings of Ms. Norman’s functional limitations: by (1)
Joseph Kahler, Ph.D. (a non‐examining State agency psychologist), (2) Dr. Green‐Paden and (3)
the ALJ. Those three ratings are displayed in the following chart.
Functional Limitation
Restriction of
Activities of Daily
Living
Difficulties in
Maintaining Social
Functioning
Difficulties in
Maintaining
Concentration,
Persistence or Pace
Episodes of
Decompensation,
Each of Extended
Duration
Opinion of Joseph
Kahler, Ph.D.
8/31/2007
mild
Opinion of Dr. Lisa
Green‐Paden
1/26/2009
moderate
moderate
moderate
moderate
Assessment by the
ALJ
7/29/2009
mild
moderate
marked
none
none
moderate
none
See R. at 14‐15, 242, 266.
The ALJ’s assessment is identical to the opinion of Joseph Kahler, Ph.D. which was
formed based upon a review of Ms. Norman’s case record including the August 29, 2007
psychological consultative evaluation performed by Scuddy F. Fontenelle, III, Ph.D. The ALJ fails
to make any mention of Joseph Kahler, Ph.D. in the decision. Although the ALJ summarizes the
psychological consultative evaluation of Scuddy F. Fontenelle, III, Ph.D. in the decision, the ALJ
does not assign or accord any weight to this opinion. This is contrary to the Social Security
10
Regulations, particularly in light of the ALJ not assigning controlling weight to Dr. Green‐Paden’s
opinions.
Unless the treating source’s opinion is given controlling weight,
the administrative law judge must explain in the decision the
weight given to the opinions of a State agency medical or
psychological consultant or other program physician or
psychologist, as the administrative law judge must do for any
opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.
20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2)(ii) (2009) (emphasis added).
The Regulations also dictate that the ALJ use relevant factors — “such as the physician’s
or psychologist’s medical specialty and expertise in our rules, the supporting evidence in the
case record, supporting explanations provided by the physician or psychologist, and any other
factors relevant to the weighing of the opinions” — to evaluate the opinions of a State agency
medical or psychological consultant (i.e., Scuddy F. Fontenelle, III, Ph.D.) or other program
physician or psychologist (i.e., Joseph Kahler, Ph.D.). See id.
The Court finds the ALJ failed to address the contrasting opinions of Joseph Kahler, Ph.D.
and Dr. Green‐Paden regarding Ms. Norman’s mental residual functional capacity. In the
decision the ALJ failed to weigh Joseph Kahler, Ph.D.’s opinion, contrary to the Regulations’
requirement. The ALJ also failed to mention in the decision the Mental Residual Functional
Capacity Assessment completed by Joseph Kahler, Ph.D., R. at 228‐31, as well as the Mental
Abilities and Aptitudes Needed to Do Unskilled Work and the Mental Abilities and Aptitudes
Needed to Do Semiskilled and Skilled Work completed by Dr. Green‐Paden, id. at 265‐66.
Moreover, it is unclear from the decision which ratings of mental activity by Dr. Green‐Paden
the ALJ found consistent with Ms. Norman’s case record and which ratings of mental activity by
11
Dr. Green‐Paden the ALJ found not totally consistent with Ms. Norman’s case record. Joseph
Kahler, Ph.D.’s and Dr. Green‐Paden’s differing assessments of multiple categories of mental
activity are reflected in the following chart.
Mental Activity
Opinion of Joseph Kahler,
Ph.D.
8/31/2007
Not significantly limited
The ability to remember
locations & work‐like
procedures
The ability to understand &
remember very short & simple
instructions
The ability to carry out very
short & simple instructions
The ability to perform
activities within a schedule,
maintain regular attendance,
and be punctual within
customary tolerances
The ability to sustain an
ordinary routine without
special supervision
The ability to work in
coordination with or proximity
to others without being
distracted by them
The ability to make simple
work‐related decisions
The ability to complete a
normal workday & workweek
without interruptions from
psychologically based
symptoms & to perform at a
consistent pace without an
unreasonable number &
length of rest periods
The ability to accept
instructions & respond
Opinion of Dr. Lisa Green‐
Paden
1/26/2009
Unable to meet competitive
standards
Not significantly limited
Not significantly limited
Seriously limited, but not
precluded
Seriously limited, but not
precluded
Unable to meet competitive
standards
Moderately limited
Not significantly limited
Not significantly limited
Not significantly limited
Moderately limited
Moderately limited
12
Unable to meet competitive
standards
Unable to meet competitive
standards
Unable to meet competitive
standards
Unable to meet competitive
standards
Unable to meet competitive
appropriately to criticisms
from supervisors
The ability to respond
appropriately to changes in
the work setting
The ability to interact with the
general public
The ability to maintain socially
appropriate behavior and to
adhere to basic standards of
neatness & cleanliness15
See R. at 228‐29, 265‐66.
standards
Not significantly limited
Seriously limited, but not
precluded
Seriously limited, but not
precluded
Moderately limited
Not significantly limited
Seriously limited, but not
precluded
A remand is warranted since the ALJ failed to follow the Social Security Administration’s
own Regulations concerning the evaluation of opinion evidence.
5. Conclusion.
Substantial evidence does not support the decision that Plaintiff is not disabled.
Accordingly, the Plaintiff’s Alternative Motion for Remand will be granted and Defendant’s
Motion for Summary Judgment will be denied.
Date: August 3, 2012
________________/s/________________
WILLIAM CONNELLY
UNITED STATES MAGISTRATE JUDGE
15
In the decision the ALJ summarized the psychological consultative evaluation by Scuddy F. Fontenelle, III, Ph.D.
The ALJ noted, “[t]he claimant reported bathing daily but that report was not considered valid as the claimant was
poorly groomed, disheveled and had a body odor during the interview.” R. at 18.
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