Adkins v. Astrue

Filing 20

MEMORANDUM. Signed by Magistrate Judge Paul W. Grimm on 2/10/2012. (aos, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

CHAMBERS OF
PAUL W. GRIMM
CHIEF UNITED STATES MAGISTRATE JUDGE

101 W. LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
[phone] FAX

February 10, 2012
Lawrence P. DeMuth, Esq.
Mignini & Raab, LLP
The Prudential Building
2015 Emmorton Road Suite 202
Bel Air, MD 21015
Alex S. Gordon, AUSA
36 S. Charles Street
4th Floor
Baltimore, MD 21201
Re: Bobby Lee Adkins v. Michael J. Astrue, Commissioner of
Social Security, PWG-10-887
Dear Counsel:
Presently pending before this Court, by the parties’
consent, are Cross-Motions for Summary Judgment concerning the
Commissioner’s decision denying Plaintiff Bobby Lee Adkins’
claims for Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”). (ECF Nos. 9, 13, 18). Plaintiff
also filed a response to Defendant’s Motion. (ECF No. 19). This
Court must uphold the Commissioner’s decision if it is supported
by substantial evidence and if proper legal standards were
employed. 42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987). A hearing is unnecessary. Local Rule 105.6. For the
reasons that follow, this Court DENIES the Commissioner’s Motion
and GRANTS the Plaintiff’s Motion for Remand.
Mr. Bobby Lee Adkins (sometimes referred to as “Mr.
Adkins”, “Claimant”, or “Plaintiff”) applied for SSI and DIB on
August 24, 2006, alleging that he was disabled as of June 1,
2001, due to depression, arthritis, asthma, post traumatic
1

stress disorder (“PTSD”), and thyroid issues.(Tr. 16, 107, 134).
His claims were denied initially and upon reconsideration. (Tr.
67-70). After a hearing before an Administrative Law Judge,
Melvin D. Benitz,(“ALJ”), the ALJ denied Mr. Adkins’ claims and
concluded in a decision dated September 16, 2008, that Claimant
suffered from depression, PTSD, arthritis, and asthma and that
they were “severe” impairments. The ALJ found, however, that
these impairments did not meet or medically equal any of the
Listing of Impairments (“LOI”). The ALJ found that Mr. Adkins
retained the residual functional capacity (“RFC”) to perform a
range of light work1. (Tr. 16-18). Based on his RFC, the ALJ
found that Mr. Adkins was precluded from performing his past
relevant work (“PRW”). After receiving testimony from a
vocational expert (“VE”), the ALJ found that there were jobs
available in the national and local economies, existing in
substantial numbers, which Mr. Adkins could perform2 and
accordingly, he was not disabled.(Tr. 13-29). On April 3, 2008,
the Appeals Council denied Claimant’s request for review, making
his case ready for judicial review. (Tr. 5-8).
Claimant argues, inter alia, that the ALJ failed adequately
to consider the medical opinions, in particular the opinions of
his treating psychiatrist, Dr. George Rever.
As explained
below, based on the record before me, I am unable to conclude
that the ALJ’s decision is supported by substantial evidence,
and therefore DENY the Commissioner’s Motion and GRANT the
Plaintiff’s Motion for Remand.

1

The ALJ stated Mr. Adkins could perform simple, unskilled low
concentration, low stress, low memory, light work, and that he
could lift 20 pounds occasionally, 10 pounds frequently, sit for
30 minutes, stand for 30 minutes, consistently on an alternate
basis during an 8 hour day, 5 days a week. The ALJ also found
Claimant was mildly limited with regard to push/pull in the left
upper extremity, he could perform no overhead reaching, and had
to avoid all exposure to heights and hazardous machinery.
Finally the ALJ found that Claimant could not handle money and
could have little interaction with the public, co-workers, or
supervisors and had to avoid all exposure to dust, odors,
chemicals, and pulmonary irritants. Finding No. 5. (Tr. 21).
2

The ALJ found he could perform work as a pre-assembler for
circuit boards, and as an assembler. (Tr. 27).
2

Mr. Adkins argues that the ALJ failed to consider the
criteria of 20 C.F.R. § 404.1527(d)(1)-(6) in evaluating the
weight to be given the opinion of his treating psychiatrist, Dr.
George Rever, and the physician’s assistant, Ms. Andrea Hoffman,
PAC.
See Pl.’s Mot., p. 16-19. For the reasons that follow, I
agree.
20 C.F.R. § 404.1527(d) requires the ALJ to give a treating
physician’s opinion controlling weight if two conditions are
met: (1) it is supported by medically acceptable clinical and
laboratory diagnostic techniques and (2) it is not inconsistent
with the other substantial evidence in the record. See Craig v.
Chater, 76 F.3d 585, 590 (4th Cir. 1996). When the ALJ
determines that a treating physician’s opinion is not entitled
to controlling weight, the ALJ must determine what weight, if
any, to give it and must also give “specific reasons” supporting
his determinations. SSR 96-2Pp (1996 WL 374188, *5). Further,
the ALJ must consider various factors in determining what weight
should be given to the psychiatrist’s opinions including: (1)
the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of
examination or testing performed; (3) the degree to which the
physician's opinion is supported by relevant evidence; (4)
consistency between the opinion and the record as a whole; (5)
whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to
the Secretary's attention which tend to support or contradict
the opinion. 20 C.F.R. 404.1527(d)(2)(i),(d)(2)(ii)(3)-(6); See
also SSR 96-5p; SSR 96-2p3.

3

Social Security Ruling 96-2p, in relevant part, states:
Adjudicators must remember that a finding that a treating source
medical opinion is not well-supported by medically acceptable
clinical and laboratory diagnostic techniques or is inconsistent
with the other substantial evidence in the case record means
only that the opinion is not entitled to "controlling weight,"
not that the opinion should be rejected. Treating source medical
opinions are still entitled to deference and must be weighed
using all of the factors provided in 20 CFR 404.1527 and
416.927. In many cases, a treating source's medical opinion
will be entitled to the greatest weight and should be adopted,
even if it does not meet the test for controlling weight. SSR
96-2p.
3

After review of the record and the ALJ’s decision, it is
apparent that the ALJ failed to discuss the applicable standard.
Dr. Rever was a member of Choptank Community Health Center,
where the Claimant was treated for depression and other
ailments, over a period of 5 years. In contrast, the state
agency physician, Dr. Moore--whose report the ALJ afforded
significant weight--never examined the Claimant. (Tr. 186-221,
264-274, 328-341). Ms. Andrea Hoffman PAC, also treated Mr.
Adkins at Choptank Community Health System examining him at
least seventeen different times. (Tr. 186-221). Dr. Rever and
Ms. Hoffman primarily treated Mr. Adkins for mental ailments,
but he also was treated for physical ailments including flu
symptoms, asthma, and shoulder pain.
Dr. Rever and Ms. Hoffman
monitored the prescription medications Claimant took, including
Lexapro and Zoloft, for anxiety and depression, and Albuterol
for asthma. (Tr. 186, 191, 193, 219).
In rejecting Doctor
Rever’s opinions regarding Claimant’s mental limitations the ALJ
stated:
“[t]he undersigned assigns little weight to
Dr. Rever’s opinion (Exhibit 19F). Dr.
Rever’s opinion is not accompanied by
treatment notes to test his conclusions
against claimant’s ongoing progress with
care. The medical record reveals that
claimant has enjoyed improvement regarding
his mental impairment with ongoing use of
mental medications. However, the claimant’s
improvement is in stark contrast to Dr.
Rever’s opinion, which without treatment
notes to review, is unexplained. (Tr. 26).

The ALJ declined to give any weight to Dr. Rever’s opinion
based on the erroneous belief that there were no treatment notes
to review. (Tr. 26, 328-340). However there are treatment
records from Dr. Rever’s office in the administrative record.
While the majority, if not all of them, were signed by Ms.
Hoffman, the physician’s assistant, these were records from Dr.
Rever’s office, Choptank Community Health System. (Tr. 23).
Therefore, I am not able to say the ALJ’s decision to reject Dr.
Rever’s opinions is supported by substantial evidence.
The ALJ acknowledged Ms. Hoffman qualified as an “other
source” medical provider as defined in the Commissioner’s
4

Regulation 404.1513(d)3, but then stated that he accorded her
opinions little weight on the basis that:
[s]he is not a physician and any opinion she renders
is not based upon years of training as a physician.
This is especially relevant when the medical
professional is rendering an opinion regarding
disability because opinions regarding a claimant’s
ability to work are administrative findings and as
such are reserved to the Commissioner. (SSR 96-5p).
(Tr. 25).
Ms. Hoffman provided treatment to Mr. Adkins’ for his
depression and her notes did not contain any assessments of his
abilities to perform work, as the ALJ’s decision implies (Tr.
25, 217). Rather, her notes stated she would discuss with Dr.
Rever whether Mr. Adkins’ depression was disabling him.
Regardless, the ALJ’s reasoning failed to recognize that her
opinions may be used to show the severity of Mr. Adkins’
impairments, and how they affect his ability to work, and may be
entitled to controlling weight.
Social Security Ruling 06-03p,
in relevant part, states “...although the factors in 404.1527(d)
explicitly apply only to the evaluation of medical opinions from
“acceptable medical sources” these same factors can be applied
to opinion evidence from “other sources”... depending on the
particular facts of the case and after applying the factors for
weighing opinion evidence, an opinion from a medical source who
is not an “acceptable medical source” may outweigh the opinion
of “an acceptable medical source,” including the medical opinion
of a treating source.” SSR 06-03p (2006 WL 2329939)
(S.S.A.)(emphasis supplied).
Finally, Claimant argues that the Appeals Council was
required to explain how it considered the evidence submitted
after the ALJ issued his decision and the failure independently
warrants a remand. See Plaintiff’s Mem. pp. 13-16. (Exhibit 20F, Tr. 341-354).

3

The Regulations provided that “other sources” include, but are
not limited to, nurse-practitioners, physicians’ assistants,
naturopaths, chiropractors, audiologists, and therapists. 20
C.F.R. 404.1513(d)(1).
5

However, as this Court stated in Waters v. Astrue, 495 F.
Supp.2d 512,514(D. Md. 2007),
“to the extent that my decision in Hawker is read as having
departed from the standard of review set forth in Wilkins
by mandating that a remand must always follow whenever the
Appeals Council fails to explain how it evaluated new
evidence presented to it, regardless of whether this
evidence could have changed the outcome when considered
with the evidence produced before the ALJ, it should no
longer be followed as Wilkins is controlling.”
That being said, this case is being remanded on other
grounds, and the ALJ will now have the opportunity to review all
the evidence, including the evidence that was accepted and
incorporated into the record by the Appeals Council. (Tr. 341354)
Thus, for the reasons given, this Court GRANTS Mr. Adkins’
Motion for Remand and DENIES the Commissioner’s Motion for
Summary Judgment. A separate Order shall issue.

_______/s/__________________
Paul W. Grimm
United States Magistrate Judge

6

7