Thomas v. Astrue

Filing 16

MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 12/7/11. (jnl, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

December 7, 2011

LETTER TO COUNSEL
RE:

Sharon Thomas v. Commissioner, Social Security; Civil No. SAG-10-1828

Dear Counsel:
Pending before this Court, by the parties’ consent, are Cross-Motions for Summary
Judgment concerning the Commissioner’s decision denying Sharon Marya Thomas’s claim for
Supplemental Security Income Benefits (“SSI”). (Paper Nos. 12 and 15). 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 GRANTS the Commissioner’s Motion and
DENIES the Plaintiff’s Motion.
Sharon Marya Thomas (“Claimant”), applied for SSI on October 25, 2004, alleging that
she had been disabled since July 31, 1998. (Tr. 60). Her claim was denied initially and upon
reconsideration. (Tr. 39-46). Claimant had a hearing before an Administrative Law Judge
(“ALJ”) on June 15, 2007. (Tr. 433-464). After allowing time for Claimant’s counsel to provide
additional medical records, the ALJ denied her claim in a decision dated February 19, 2008. (Tr.
11-20). The ALJ found that Claimant retained the residual functional capacity (“RFC”) to
perform a limited range of sedentary work. (Tr. 16-17). The ALJ found that Claimant was not
able to perform any of her past relevant work, but that considering her age, education, work
experience, and RFC, and after receiving testimony from a vocational expert (“VE”), there were
jobs that existed in the national and local economies that she could perform. (Tr. 18-19).
Accordingly, the ALJ found that she was not disabled. (Tr. 20). On June 17, 2010, the Appeals
Council denied her request for review, making her case ready for judicial review. (Tr. 4-6).
Claimant presents several arguments in support of her contention that the
Commissioner’s final decision is not supported by substantial evidence. She first argues that the
ALJ failed to accord adequate weight to the opinion of her treating physician and erroneously
gave more weight to the opinion of the consulting physician. See Plaintiff’s Memorandum, pp.
7-11. For the reasons that follow, I disagree.

After careful review of the entire record, while more detail certainly could have been
included, I find that the ALJ fulfilled her duties and adequately discussed how she considered the
medical evidence in this case. The record contains no treatment records from the “treating
physician” in question, Dr. Andrew McGlone. The ALJ specifically requested, at the hearing,
that Claimant’s counsel provide those records from Dr. McGlone. (Tr. 462). If Claimant wanted
Dr. McGlone to be considered as a “treating physician,” Claimant needed to establish that she
sees, or had seen, Dr. McGlone with a frequency consistent with accepted medical practice for
the type of treatment and/or evaluation required for her medical condition. 20 C.F.R. § 416.902.
Claimant has not done so. Regardless, a review of the evidence submitted by Claimant
demonstrates that the ALJ’s evaluation of Claimant’s RFC was consistent with two out of the
three reports from Dr. McGlone. On March 8, 2007, Dr. McGlone provided his first opinion, in
which he opined that Claimant’s medical condition prevented her from working for the next
year, but then noted in the comments that her ailments merely limit “ability to perform labor
requiring her to stand/walk.” (Tr. 205-06). Just three months later, on June 14, 2007, Dr.
McGlone provided a second opinion on a series of forms addressing Claimant’s medical
condition after surgery for thyroid cancer. (Tr. 207-11). In those forms, Dr. McGlone indicated
that he did not know what side effects Claimant would suffer from her medication (Tr. 207), but
he placed no restrictions on her ability to sit and reach during an 8 hour workday (Tr. 209). He
indicated, without explanation, that Claimant had frequent difficulties in maintaining
concentration, persistence, and pace. (Tr. 210). In the narrative section, Dr. McGlone opined
that Claimant’s medical condition would prevent her from working, citing “medication side
effects of drowsiness limit ability to function with manual labor. She is recovering from surgery
which appears to be exacerbating her condition.” (Tr. 210-11). However, on August 2, 2007,
Dr. McGlone provided a third opinion, in which he reiterated that Claimant’s impairments do not
affect her ability to sit, and opined that Claimant could perform sedentary work. (Tr. 212-216).
Dr. McGlone also specified in his third opinion that Claimant would not have to lie down for any
hours between 9 AM and 5 PM. (Tr. 216).
Because Claimant failed to provide the treatment notes from Dr. McGlone, and only
provided the three reports from early to mid-2007, the ALJ could not evaluate the factual bases
for Dr. McGlone’s three opinions. However, the ALJ specifically addressed Dr. McGlone’s
second opinion, which is the only opinion to reference concentration difficulties and drowsiness.
(Tr. 18). The ALJ noted that the second opinion is contradicted by the medical evidence
supporting Claimant’s ability to perform sedentary work, including the prior and subsequent
opinions by Dr. McGlone himself. (Tr. 18). The ALJ also noted that the second opinion from
Dr. McGlone contravened the other evidence contained in the record, including Claimant’s own
function report (Tr. 80-87) and the information from treating physician Dr. Boyer regarding
Claimant’s non-compliance with her treatment regimen. (Tr. 135-181). Finally, by logical
extension, the ALJ determined that Dr. McGlone’s second opinion was contradicted by the state
agency physicians’ reports. (Tr. 18).
In sum, there is no reasonable basis to conclude that Dr. McGlone’s opinions were
ignored. Two of the three opinions from Dr. McGlone were fully consistent with the RFC
determined by the ALJ, which prohibited manual labor and included limited sedentary positions.
The single inconsistent opinion Dr. McGlone provided was accorded limited weight for the
reasons described by the ALJ.
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In light of the analysis of Dr. McGlone’s opinions, the comparative weight afforded to
the state agency physicians does not provide a basis for remand. SSR 96-6p provides that an
ALJ may afford great weight to non-examining state agency physicians’ opinions. The ALJ
adequately discussed the reasons for affording the State Agency physicians’ opinions significant
weight. After review of the entire record, I find the ALJ’s decision is supported by substantial
evidence, including the evidence the ALJ cited in the record. For example, Dr. Leopold Morane,
a state agency non-examining physician, stated that Ms. Thomas “has described daily activities
that are not significantly limited in relation to her alleged symptoms.” (Tr. 187). That function
report by Ms. Thomas also provided a primary basis for the ALJ’s assessment of the evidence,
per the ALJ’s discussion. Similarly, Dr. Irving Kramer, another state agency non-examining
physician, noted, “ADL’s functional & independent . . . does chores, prepares meals, cares for
children.” (Tr. 200). Finally, Dr. Stephen R. Smith, the consultative examiner for the state,
determined that “the patient was found to be capable of sitting, standing, walking, lifting,
carrying, and handling objects, hearing, and speaking. “ (Tr. 192). Dr. Smith opined that, even
pending further medical management which would likely reverse the neuropathy, “the patient
would appear to be qualified for job opportunities in which a great deal of walking or standing is
not required.” (Tr. 194). In light of the correspondence between the evidence cited by the ALJ
and the findings of the state agency physicians, all of this evidence was properly considered by
the ALJ and I find the ALJ’s findings are explained adequately and are supported by substantial
evidence.
Claimant next argues that the ALJ did not complete the two-step process for evaluating
her allegations of pain. That complaint lacks merit. The Fourth Circuit has developed a two-part
test for evaluating a claimant's allegations of pain. Craig v. Chater, 76 F.3d 585, 594 (4th Cir.
1996).
The first prong of this test requires a determination that there is objective medical
evidence of a medical impairment reasonably likely to cause the pain alleged by the
claimant. Id. The second prong requires the ALJ to consider “the intensity and
persistence of the claimant's pain, and the extent to which it affects [his] ability to work.”
Id. at 595. However, “a lack of an explicit finding at the first step of the required pain
analysis does not constitute reversible error if the ALJ cites to substantial evidence to
support his overall finding on [the claimant's] subjective complaint of pain.” Ketcher v.
Apfel, 68 F.Supp.2d 629, 651 (D.Md.1999).
Perkins v. Apfel, 101 F.Supp.2d 365, 373 (D. Md. 2000). The ALJ has cited to substantial
evidence to support her overall finding on Claimant’s subjective complaint of pain. First, the
ALJ expressly found that Claimant suffers from pain, (Tr. 16), but simply determined that
Claimant’s “statements concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely credible.” (Tr. 17). Specifically, the ALJ cited to Claimant’s noncompliance with treatment regimens, and to Claimant’s own assessment of her ability to perform
all of her previous activities of daily living “but work.” (Tr. 18). Those activities included child
care, housework, shopping, cooking, and playing sports. (Tr. 18). Those citations constitute
substantial evidence to support the ALJ’s determination, and the lack of explicit findings at the
first step of the pain analysis therefore does not constitute reversible error.
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I also find no merit in Claimant’s next argument, because the hypothetical presented to
the VE was supported by substantial evidence and adequately included all the limitations that
were deemed credible by the ALJ. The ALJ is afforded “great latitude in posing hypothetical
questions,” Koonce v. Apfel, No. 98-1144, 1999 WL 7864, at *5 (4th Cir. Jan. 11, 1999), and
need only pose those that are based on substantial evidence and accurately reflect a claimant’s
limitations. See Copeland v. Bowen, 861 F.2d 536, 540-41 (9th Cir. 1988).
In the present case, the ALJ posed a hypothetical to the VE regarding an individual with
the conditions and limitations found credible by the ALJ. This hypothetical specifically
mentioned pain, neuropathy, and climbing and standing restrictions. (Tr. 460). In response, the
VE identified several sedentary jobs in the local and national economies. (Tr. 460). The ALJ
also complied with her duty to inquire whether the VE’s findings conflicted with the DOT. Cline
v. Chater, 82 F.3d 409 (4th Cir. 1996); See also SSR 00-4p. (Tr. 19).
Claimant’s final arguments relate to the determination of her RFC, particularly whether
the ALJ considered the side effects of pain medications and performed a function-by-function
assessment of Claimant’s capacity. I disagree with Claimant’s positions. The ALJ’s RFC
determination, restricting Claimant to sedentary work, comported with the extremely limited
medical evidence regarding any side effects from medication. See Tr. 211 (Dr. McGlone’s
report that “[m]edication side effects of drowsiness limit ability to function with manual labor.”).
The only evidence of more significant limitations from side effects of pain medications came
from Claimant’s testimony which, as addressed above, was judged not credible by the ALJ. (Tr.
17). Moreover, the ALJ’s determination of Claimant’s ability to do sedentary work, in addition
to the narrative discussion of Claimant’s symptoms and the medical source opinions, sufficed
even in the absence of an express function-by-function analysis. Knox v. Astrue, 327 Fed.Appx.
652, 657 (7th Cir. 2009) (“[T]he expression of a claimant's RFC need not be articulated functionby-function; a narrative discussion of a claimant's symptoms and medical source opinions is
sufficient.”) (citing Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)).
Thus, for the reasons given, this Court GRANTS the Commissioner’s Motion for
Summary Judgment and DENIES Claimant’s Motion.
Despite the informal nature of this letter, it should be flagged as an opinion. A separate
Order shall issue.
Sincerely yours,

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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