Baxter v. Astrue
Filing
32
MEMORANDUM OPINION. Signed by Magistrate Judge Susan K. Gauvey on 1/4/2012. (aos, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
SUSAN K. GAUVEY
U.S. MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
MDD_skgchambers@mdd.uscourts.gov
(410) 962-4953
(410) 962-2985 - Fax
January 4, 2012
Paul W. Nolan, Esq.
Thurlow and Nolan PA
P.O. Box 512
Phoenix, MD 21131
Alex S. Gordon, Esq.
Assistant United States Attorney
36 South Charles Street, 4th Floor
Baltimore, MD 21201
Re:
Jill Baxter v. Michael J. Astrue, Commissioner, Social
Security, Civil No. SKG-10-3048
Dear Counsel:
Plaintiff, Jill Baxter, by her attorney, Paul W. Nolan,
Esq., filed this action seeking judicial review, pursuant to 42
U.S.C. § 405(g), of the final decision of the Commissioner of
the Social Security Administration (“the Commissioner”), who
denied plaintiff’s claim for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“the Act”).
42 U.S.C. § 405(g).
This case has been referred to the
undersigned magistrate judge by consent of the parties pursuant
to 28 U.S.C. § 636(c) and Local Rule 301. (ECF No. 8; ECF No. 9;
1
ECF No. 10).
Currently pending before the Court are cross motions for
summary judgment. (ECF No. 19; ECF No. 24).
necessary.
Local Rule 105.6.
No hearing is
For the reasons that follow, the
Court hereby DENIES plaintiff’s motion for summary judgment (ECF
No. 19), DENIES defendant’s motion for summary judgment (ECF No.
24), and REMANDS this case for further proceedings consistent
with this opinion.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on October 23, 2006,
alleging that she became unable to work starting on July 14,
2005 due to “anxiety, depression, gastrointestinal [sic], panic
disorder, Barretts esophagus, chronic acid reflux, irritable
bowel syndrome, and bile gastritus.” (R. 127).
Plaintiff’s
application was denied at the initial and reconsideration
levels. (R. 52-55, 57-58).
Thereafter, plaintiff had an
administrative hearing on December 17, 2008. (R. 22-56).
On
April 1, 2009, the Administrative Law Judge (“ALJ”) denied
plaintiff’s claim.
(R. 10-21).
On October 14, 2010, the
Appeals Council denied plaintiff’s request for review, making
the ALJ’s opinion the final decision of the agency.
(R. 1-3).
On October 28, 2010, plaintiff filed this action, seeking review
of that final decision pursuant to 42 U.S.C. § 405(g).
2
II.
FACTUAL BACKGROUND
The Court has reviewed defendant’s Statement of Facts, finding
it generally accurate.1 However, the statement omits discussion
of the treatment history and treatment notes of Plaintiff’s
long-time treating psychiatrist, Dr. Grace-Lee.
Instead,
defendant’s statement of facts simply reports Dr. Grace-Lee’s
conclusions.
Thus, the Court includes a discussion of
Plaintiff’s treatment history with Dr. Grace-Lee below.
Plaintiff began outpatient treatment with Dr. Grace-Lee in
1992, when Plaintiff’s first symptoms of depression began. (R.
268, 313).
Plaintiff continued to see Dr. Grace-Lee from 1992
until at least the date of the hearing (December 17, 2008).
34, 267).
(R.
She saw Dr. Grace-Lee on a regular basis, with
frequency ranging from once every two months, to once every
month, to once every three to four weeks.
(R. 268, 313, 353-
366).
The record includes Dr. Grace-Lee’s treatment notes taken
between March 26, 2004 and September 24, 2008. (R. 353-366).
The treatment notes indicate that Plaintiff had good days and
bad days.
1
Defendant’s statement of facts highlights most of
Plaintiff does not contest the facts as presented by Defendant;
nor does Plaintiff present her own statement of facts.
3
Plaintiff’s good days, but omits many of Dr. Grace-Lee’s
notations of Plaintiff’s depression symptoms on other days.
Those notations include the following:
On February 12, 2005, Dr. Grace-Lee reported that Plaintiff’s
mood was affected by multiple stressors, including job loss
concerns and Plaintiff’s mother’s health. (R. 355).
On June 14,
2006, Plaintiff reported that she had trouble sleeping at night.
(R. 298).
On November 7, 2006, Dr. Grace-Lee noted that
Plaintiff felt overwhelmed and was “unable to do much in terms
of work.” (R. 297).
On February 27, 2007, Dr. Grace-Lee noted
that plaintiff felt anxious and overwhelmed. (R. 295).
On May
29, 2007, plaintiff again reported to Dr. Grace-Lee that she was
overwhelmed, and Dr. Grace-Lee prescribed Plaintiff lamictal.
(Id.).
On August 1, 2007, Dr. Grace-Lee observed that Plaintiff
had “no motivation” and had “good days” followed by “days with
low mood.” (R. 294).
She also stated that Plaintiff is
“[u]nable to do work of any kind” and has “limited activities.”
(Id.).
On September 4, 2007, Dr. Grace-Lee noted that Plaintiff
had slowed concentration and focus.
(R. 362).
On October 2,
2007, Plaintiff told Dr. Grace-Lee that she felt antsy and had
trouble falling asleep.
(Id.).
On October 30, 2007, Dr. Grace-
Lee indicated that Plaintiff was “[d]epressed[,]” “tearful” and
“overwhelmed.”
(R. 363).
On November 27, 2007, Dr. Grace-Lee
4
reported that Plaintiff was “[r]eactive to every day
stressors[,]” was “[e]asily overwhelmed[,]” and “[e]asily
fatigued.”
(Id.).
On January 22, 2008, plaintiff told Dr.
Grace-Lee that she always felt nervous.
(R. 364).
On May 13,
2008, Dr. Grace-Lee noted that Plaintiff had a restricted affect
and a depressed mood. (R. 365).
Finally, on September 24, 2008,
Plaintiff appeared tearful and reported to Dr. Grace-Lee that
she had been in bed for five days because of her depression. (R.
366).
Dr. Grace-Lee noted in a letter to Plaintiff’s counsel that
Plaintiff’s depression and anxiety worsened over the course of
her treatment “despite multiple medication trials and
combinations of medicines.”
(R. 346).
III. ALJ’S FINDINGS
In evaluating plaintiff’s claim for DIB, the ALJ was
required to consider all of the evidence in the record and to
follow the sequential five-step evaluation process for
determining disability, set forth in 20 C.F.R § 416.920(a).2 If
the agency can make a disability determination at any point in
2
Disability is defined in the Act as the “inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or has lasted or can be expected to last for
a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A) (2004).
5
the sequential analysis, it does not review the claims further.
20 C.F.R. § 1520(a). After proceeding through all five steps,
the ALJ in this case concluded that plaintiff was not disabled
as defined by the Act. (R. 21).
The first step requires plaintiff to prove that he is not
engaged in “substantial gainful activity.”3
416.920(a)(4)(I).
20 C.F.R. §
If the ALJ finds that plaintiff is engaged in
“substantial gainful activity,” plaintiff will not be considered
disabled.
Id.
Here, the ALJ determined that, although the
plaintiff did work after the onset of the established
disability, that work activity did not rise to the level of
substantial gainful activity. (R. 12).
At the second step, the ALJ must determine whether
plaintiff has a severe, medically determinable impairment or a
combination of impairments that limit plaintiff’s ability to
perform basic work activities.
20 C.F.R. §§ 404.1520(c),
416.920(c); see also 20 C.F.R. §§ 404.1521, 416.921.
There is
also a durational requirement that plaintiff’s impairment last
3
Substantial gainful activity is defined as “work activity that
is both substantial and gainful.” 20 C.F.R. § 416.972. Work
activity is substantial if it involves doing significant
physical or mental activities and even if it is part-time or if
plaintiff is doing less, being paid less, or has fewer
responsibilities than when he worked before. 20 C.F.R. §
416.972(b). Substantial gainful activity does not include
activities such as household tasks, taking care of oneself,
social programs, or therapy. 20 C.F.R. § 416.972(c).
6
or be expected to last for at least 12 months.
416.909.
20 C.F.R. §
Here, the ALJ determined that plaintiff has the
following severe impairments: (1) esophagitis/gastritis; (2)
shoulder impairment; and (3) anxiety/depression. (R. 12).
However, the ALJ found no evidence of a severe gynecological
impairment. (R. 13).
At step three, the ALJ considers whether plaintiff’s
impairments, either individually or in combination, meet or
equal an impairment enumerated in the “Listing of Impairments”
(“LOI”) in 20 C.F.R. § 404, Subpart P, Appendix 1.
20 C.F.R. §
416.920(a)(4)(iii). In this case, the ALJ found that plaintiff’s
impairments did not meet or equal listed impairments. (R. 14).
Before an ALJ advances to the fourth step, he must assess
plaintiff’s “residual functional capacity” (“RFC”), which is
then used at the fourth and fifth steps.
404.1520(a)(4)(e).
20 C.F.R. §
The RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis.
SSR 96-8p.
The ALJ must consider even those impairments that
are not “severe.”
20 C.F.R. § 404.1520(a)(2). In determining a
plaintiff’s RFC, ALJs evaluate the plaintiff’s subjective
symptoms (e.g., allegations of pain) using a two-part test.
Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996); 20 C.F.R. §
7
404.1529. First, the ALJ must determine whether objective
evidence shows the existence of a medical impairment that could
reasonably be expected to produce the actual alleged symptoms.
20 C.F.R. § 404.1529(b). Once the claimant makes that threshold
showing, the ALJ must evaluate the extent to which the symptoms
limit the claimant's capacity to work. 20 C.F.R. §
404.1529(c)(1). At this second stage, the ALJ must consider all
the available evidence, including medical history, objective
medical evidence, and statements by the claimant. 20 C.F.R. §
404.1529(c). The ALJ must assess the credibility of the
claimant's statements, as symptoms can sometimes manifest at a
greater level of severity of impairment than is shown by solely
objective medical evidence. SSR 96-7p, 1996 SSR LEXIS 4.
Here, the ALJ determined that plaintiff has the following
residual functional capacity.
(R. 15-20).
Plaintiff can
“perform light work as defined in 20 C.F.R. § 404.1567(b) except
she is unable to perform overhead reaching” and “she is limited
to routine, repetitive tasks with only incidental public
contact.”
(R. 16).
Applying the two-step test for evaluating
subjective symptoms, the ALJ found that, although plaintiff’s
“medically determinable impairments could reasonably be expected
to cause the alleged symptoms[,]” plaintiff’s “statements
concerning the intensity, persistence and limiting effects of
8
these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity
assessment.”
(R. 18).
At the fourth step, the ALJ must consider whether plaintiff
retains the RFC necessary to perform past relevant work.
C.F.R. §§ 404.1520(e), 416.920(e).
20
The ALJ here determined that
plaintiff is unable to perform her past relevant work as a legal
secretary. (R. 20).
Where, as here, plaintiff is unable to resume her past
relevant work, the ALJ must proceed to the fifth and final step.
This step requires consideration of whether, in light of
vocational factors such as age, education, work experience, and
RFC, plaintiff is capable of other work in the national economy.
See 20 C.F.R. §§ 404.1520(f), 416.920(f).
At this step, the
burden of proof shifts to the agency to establish that plaintiff
retains the RFC to engage in an alternative job which exists in
the national economy.
McLain v. Schweiker, 715 F.2d 866, 868-69
(4th Cir. 1983); Wilson v. Califano, 617 F.2d 1050, 1053 (4th
Cir. 1980).
The agency must prove both plaintiff’s capacity to
perform the job and that the job is available.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
Grant v.
Before the agency
may conclude that plaintiff can perform alternative skilled or
semi-skilled work, it must show that plaintiff possesses skills
9
that are transferable to those alternative positions or that no
such transferable skills are necessary.
869.
McLain, 715 F.2d at
Here, the ALJ concluded that an individual of plaintiff’s
age, education, work experience, and RFC could perform jobs
including the following: (1) bakery worker (60,000 jobs
nationally and 300 regionally); or (2) garment bagger, (630,000
jobs nationally and 500 jobs regionally).
(R. 21).
Therefore, the ALJ concluded that plaintiff was not
disabled, and had not been disabled since July 14, 2005, the
date she filed her DIB application. (R. 10).4
IV.
STANDARD OF REVIEW
The function of this Court on review is to leave the
findings of fact to the agency and to determine upon the whole
record whether the agency’s decision is supported by substantial
evidence—not to try plaintiff’s claim de novo.
Califano, 599 F.2d 597, 598 (4th Cir. 1979).
King v.
This Court must
uphold the Commissioner’s decision if it is supported by
substantial evidence and if the ALJ employed the proper legal
standards.
42 U.S.C. §§ 405(g), 1383(c)(3) (2001); Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987).
4
Substantial evidence “consists
The ALJ also determined that plaintiff met the insured status
requirements of the Social Security Act through December 31,
2010. (R. 12).
10
of more than a scintilla of evidence but may be somewhat less
than a preponderance.”
(4th Cir. 1966).
Laws v. Celebrezze, 368 F.2d 640, 642
It is “such relevant evidence as a reasonable
mind might accept to support a conclusion.”
Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotations omitted).
In reviewing the decision, this Court will not re-weigh
conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner.
Craig, 76
F.3d at 589; Hayes v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990).
The Commissioner, as fact finder, is responsible for
resolving conflicts in the evidence.
F.2d 518, 520 (4th Cir. 1962).
Snyder v. Ribicoff, 307
If the Commissioner’s findings
are supported by substantial evidence, this Court is bound to
accept them.
Underwood v. Ribicoff, 298 F.2d 850 (4th Cir.
1962).
Despite deference to the Commissioner’s findings of fact, “a
factual finding by the ALJ is not binding if it was reached by
means of an improper standard or misapplication of the law.”
Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
The Court has
authority under 42 U.S.C. § 405(g) to affirm, modify, or reverse
the decision of the agency “with or without remanding the case
for a rehearing.”
Melkoyan v. Sullivan, 501 U.S. 89, 98 (1991).
V.
DISCUSSION
11
Plaintiff raises two arguments on appeal: (1) the ALJ
improperly discredited the opinion of plaintiff’s treating
physician by failing to evaluate the opinion in accordance with
the requirements under 20 C.F.R. § 404.1527(d); and (2) the ALJ
improperly ignored some of plaintiff’s psychological
limitations. (ECF No. 19-1; ECF No. 31).5
For the reasons set
forth below, the Court agrees with Plaintiff’s first argument,
and disagrees with the second.
A. The ALJ Improperly Evaluated the Opinion of Plaintiff’s
Treating Physician.
The standard for reviewing and weighing medical opinions is
set forth in 20 C.F.R. § 416.927(d), which states in pertinent
part:
[W]e give more weight to opinions from your
treating sources, since these sources are .
. . most able to provide a detailed,
longitudinal
picture
of
your
medical
impairment(s)
and
may
bring
a
unique
perspective to the medical evidence that
cannot
be
obtained
from
the
objective
medical findings alone . . . If we find that
a treating source's opinion on the issue(s)
of
the
nature
and
severity
of
your
impairment(s) is well-supported by medically
acceptable
clinical
and
laboratory
diagnostic
techniques
and
is
not
inconsistent with the other substantial
5
As discussed below, plaintiff’s arguments as to the context in
which the ALJ improperly ignored those limitations changed
between her motion for summary judgment (filed April 11, 2011)
and her opposition to defendant’s motion for summary judgment
(filed November 14, 2011).
12
evidence in your case record, we will give
it controlling weight . . . We will always
give good reasons . . . for the weight we
give your treating source's opinion.
20 C.F.R. § 416.927(d)(2).
Therefore, opinions of treating
physicians which are supported by medically acceptable
techniques and are not inconsistent with other substantial
evidence in the record are to be given great weight.
Conversely, SSR 96-2p, 1996 SSR LEXIS 9 provides that a
medical opinion can only be given controlling weight if it is
(1) an actual opinion; (2) from a treating source; (3) well
supported by objective evidence; and (4) not inconsistent with
other substantial evidence in the case.
20 C.F.R. § 404.1527(d)(2) outlines the factors that an ALJ
must consider when determining whether to afford a treating
source’s opinion controlling weight.
The factors are as
follows: (1) the “[l]ength of the treatment relationship and the
frequency of examination[;]” (2) the “[n]ature and extent of the
treatment relationship[;]” (3)
the extent to which the opinion
is supported by medical evidence of record; (4) the consistency
of the opinion with the record as a whole; (5) the
specialization of the treating physician (because the ALJ
generally gives more weight to specialists); and (6) “any
[other] factors . . . which tend to support or contradict the
13
opinion.”
20 C.F.R. § 404.1527(d)(2).
Plaintiff argues that the ALJ’s refusal to assign
controlling weight to Dr. Grace-Lee’s opinion is erroneous
because the ALJ failed to explicitly discuss every factor in 20
CFR § 404.1527(d).6
(ECF No. 19-1, 3).
In fact, plaintiff
argues that the only factor the ALJ addressed was the “nature
and extent of treatment,” and the ALJ’s only comment relevant to
that factor was that Ms. Baxter has not been hospitalized for
any psychiatric problems.
(Id.).
Thus, plaintiff deems the
6
Plaintiff also appears to argue that the ALJ’s refusal to
assign controlling weight to Dr. Grace-Lee’s opinion is
inconsistent with the following statement that the ALJ made
during the hearing:
[I]n looking at the assessment at 26F,
completed by Grace Leigh, I will stipulate
that that’s an accurate assessment of the
claimant’s functioning.
There is no work
she could do.
(ECF No. 19-1, 2). Later, plaintiff argues that “[s]ince the
ALJ ‘stipulated’ that Dr. Grace-Lee’s opinion would justify a
finding of disabled, we request that the Court reverse the final
decision of the Commissioner . . . .” (Id. at 4). However,
plaintiff states in a footnote that “[p]laintiff’s counsel will
assume that the ALJ must have mis-spoke at the hearing since his
decision is obviously inconsistent with” the statement the ALJ
made at the hearing. (Id. at 2). Plaintiff’s assumption is
completely inconsistent with her argument. The Court agrees
with Plaintiff that the ALJ misspoke at the hearing. It appears
that the crucial word “if” was omitted. The statement should
probably have read: “I will stipulate that [if] that’s an
accurate assessment of the claimant’s functioning[,] [t]here is
no work she could do.”
14
ALJ’s assessment of Dr. Grace-Lee’s opinion erroneous. The Court
agrees that the ALJ improperly evaluated Dr. Grace-Lee’s
opinion, although for different reasons.
Nothing in § 404.1527(d)(2) requires an express discussion
of each factor. See 20 C.F.R. § 404.1527(d)(2).
Although the
Fourth Circuit has not yet addressed whether an ALJ must
explicitly analyze every factor, several district courts within
the Fourth Circuit have not found such a requirement.
See,
e.g., Hilton v. Astrue, 2011 U.S. Dist. LEXIS 133988, at *8
(D.S.C. Nov. 21, 2011) (“[E]ven if the ALJ is not required to
name each factor, the ALJ's decision must nonetheless be
‘sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source's medical
opinion and the reasons for that weight.’”) (quoting SSR 96-2p,
1996 SSR LEXIS 9); Overcash v. Astrue, 2010 U.S. Dist. LEXIS
141695, at *16-17 (W.D.N.C. May 21, 2010) (“While an ALJ's
decision need not explicitly discuss each factor [set forth in
20 C.F.R. § 404.1527(d)(2)], it must justify the amount of
weight afforded with specific reasons.”);
Hendrix v. Astrue,
2010 U.S. Dist. LEXIS 90922, at *7-8 (D.S.C. Sept. 1, 2010)
(“[A]n express discussion of each factor is not required as long
as the ALJ demonstrates that he applied the § 404.1527(d)
factors and provides good reasons for his decision.”); Clay v.
15
Astrue, 2008 U.S. Dist. LEXIS 116554, at *47-48 (N.D. W. Va.
Oct. 24, 2008) (“[W]hile the ALJ did not explicitly and
specifically reference every factor enumerated in §
404.1527(d)(2) . . . he summarized almost the entire medical
record before him . . . [and] properly determined that the
opinions of [the treating physicians] were not entitled to great
weight.”); Munson v. Astrue, 2008 U.S. Dist. LEXIS 100273
(E.D.N.C. Dec. 8, 2008) (“Contrary to plaintiff's contention,
the ALJ need ‘not explicitly discuss all the § 404.1527(d)
factors for each of the medical opinions,’ as long as good
reasons are provided for the assigned weight”) (citations and
quotations omitted); see also Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007) (“[Plaintiff] cites no law, and we have
found none, requiring an ALJ’s decision to apply expressly each
of the six relevant factors in deciding what weight to give a
medical opinion[,]” especially since “as the Commissioner has
recognized, ‘[n]ot every factor for weighing opinion evidence
will apply in every case.’”)(internal citation omitted).
However, at least one district court within the Fourth Circuit
has required explicit discussion of each factor.
See Jefferson
v. Comm’r of Soc. Sec., C/A No. 6:02-3470-17AK (D.S.C. Feb. 18,
2004) (interpreting Burch v. Apfel, 9 Fed. Appx. 255, 2001 WL
574634, at *4 (4th Cir. 2001) as presuming an express discussion
16
of each factor).
Thus, it is not entirely clear whether the ALJ must
explicitly “check off” every § 404.1527(d)(2) factor.7
What is
clear under Fourth Circuit law is that the ALJ must at least
indicate that he or she was aware of and considered all of the
factors.
Burch, 2001 WL 574634, at *259-60.
In this case, it is sufficiently clear that (1) the ALJ
recognized Dr. Grace-Lee’s specialty as a psychiatrist; and (2)
the ALJ considered the consistency of Dr. Grace-Lee’s opinion
with the other medical evidence and the record as a whole.
However, the Court is not confident that the ALJ considered the
length, frequency and nature of the treatment relationship.
As far as the ALJ’s consideration of Dr. Grace-Lee’s
specialization, it is highly likely that the ALJ understood Dr.
Grace-Lee’s specialty as a psychiatrist.
Although the ALJ did
not explicitly refer to Dr. Grace-Lee as a psychiatrist in his
written opinion, he did so on multiple occasions during the
hearing.
(See R. 26-27, 34, 48). Further, at several points in
the written opinion, the ALJ cited to the mental RFCA completed
by Dr. Grace-Lee. (E.g., R. 14, 19).
7
Moreover, the record
While the Court believes it is the better practice for the ALJ
to discuss all the factors (as it assures the reviewing court of
careful consideration), failure to do so does not compel a
remand in all cases.
17
indicates that Dr. Grace-Lee practiced with “Bay Region
Psychiatric Services” (see, e.g., R. 294, 353), and “White Marsh
Psychiatric Associates” (see, e.g., R. 346).
those portions of the record extensively.
The ALJ cited
(See R. 13-14, 17,
19). The ALJ also recognized that Dr. Grace-Lee was a medical
doctor (a psychiatrist, as opposed to a psychologist) by
including the suffix “M.D.” after her name on several occasions
throughout his written opinion.
(Id.).
The Court is also satisfied that the ALJ considered a
comparison between Dr. Grace-Lee’s opinion and the medical and
other evidence of record.
The ALJ explicitly stated that:
The opinions of Dr. Grace-Lee are . . . not
supported
by
the
evidence
of
record,
including the claimant’s own report of daily
activities and the claimant’s history of
conservative treatment all of which has been
discussed above.
(R. 19).
However, the Court notes that that consideration was
inadequate.
The above statement is conclusory, without
supporting facts.
An ALJ’s determination must “contain specific
reasons for the weight given to the treating source’s medical
opinion, supported by the evidence in the case record, and must
be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.”
18
SSR
96-2, 1996 SSR LEXIS 9; see also Pusey v. Astrue, 2011 U.S.
Dist. LEXIS 14229, at *17 (D. Md. Feb. 14, 2011) (deeming an
ALJ’s statement that a treating source’s conclusions were
“inconsistent with the record and his own treatment notes”
insufficient justification for refusing to assign controlling
weight to a treating source opinion).
Although the ALJ
summarized almost the entire medical record before him, he did
not explicitly state which pieces of evidence in the record
(including the reports of daily activity and treatment history)
contradict Dr. Grace-Lee’s opinion.
Thus, his reasoning is not
sufficiently clear to the reviewer.
The ALJ must be more
specific on remand.8
Turning to the next factor, the Court is not satisfied that
8
In further support of the argument that the ALJ improperly
dismissed Dr. Grace-Lee’s opinion, Plaintiff cites a case out of
the Eastern District of New York, Harnisher v. Apfel, 40 F.
Supp. 2d 121, 129 (E.D.N.Y. 1999) (remanding an ALJ’s refusal to
assign controlling weight to a treating source’s opinion simply
because the opinion was inconsistent with the claimant’s
testimony that he uses over the counter medication, can walk ¾
of a mile, and can drive). The Court agrees that the ALJ’s
comparison of Dr. Grace-Lee’s opinion with the rest of the
record was insufficient, but does not consider Harnisher
persuasive. Besides the fact that Harnisher is not controlling
law, it is distinguishable. The ALJ here deemed Dr. Grace-Lee’s
opinion inconsistent with the evidence of record generally,
including claimant’s report of daily activities and the evidence
of conservative treatment. (R. 19). The ALJ’s rational was not
limited to several statements made by Plaintiff. Had the ALJ in
this case provided specific examples of evidence that
sufficiently showed conflict with Dr. Grace-Lee’s opinion, the
ALJ’s reasoning may have been sufficient to withstand challenge.
19
the ALJ appreciated the length, frequency or nature of Dr.
Grace-Lee’s treatment of Plaintiff.
The ALJ’s opinion notes
that Plaintiff’s symptoms of depression began in 1992, but does
not note that Dr. Grace-Lee began treating Plaintiff at that
time.
At the time of the ALJ’s written opinion (April 1, 2009),
Dr. Grace-Lee had treated Plaintiff for about seventeen years.
Nowhere does the ALJ acknowledge that significant span of
treatment.
Although the ALJ cites to Dr. Grace-Lee’s treatment
notes (R. 294-303, 353-366) in describing Plaintiff’s medical
history, those notes only cover the period between March 26,
2004 and September 24, 2008.
The Court does not know whether
the ALJ appreciated the twelve years of treatment prior to that
period of time.
Further, the ALJ never acknowledged the
frequency of Dr. Grace-Lee’s treatment.
As stated above, the
record indicates that Plaintiff saw Dr. Grace-Lee on a regular
basis, with frequency ranging from once every two months, to
once every month, to once every three to four weeks.
313, 353-366).
(R. 268,
The Court has no way of knowing whether the ALJ
appreciated the frequency and regularity of treatment before
rejecting Dr. Grace-Lee’s opinion.
Accordingly, the Court is not confident that the ALJ
considered all the factors set forth in § 404.1527(d), and a
remand is necessary.
20
B. The ALJ Adequately Addressed Plaintiff’s Psychological
Limitations in Both His RFC Assessment and His Hypothetical
to the VE.
During the hearing, the ALJ posed the following hypothetical
to the VE:
Assume an individual the claimant’s age,
education and work experience and was [sic]
limited to light work.
Non-exertionally,
limited to routine, repetitive tasks, which
means the individual is incapable of details
for complex task[s] as required by skilled
[inaudible] labor.
Only incidental public
contact and no reaching above shoulder
level.
. . . Are there any unskilled jobs
the individual could perform?
(R. 44).
The VE responded that such an individual could work as
a bakery worker on a conveyor line or as a garment bagger. (R.
45).
In his written decision, the ALJ determined that plaintiff
retained the RFC contained in that hypothetical (specifically,
plaintiff can perform light work that is limited to routine,
repetitive tasks, has no overhead reaching, and requires only
incidental public contact). (R. 16). Accordingly, the ALJ
determined that plaintiff was capable of performing jobs that
exist in significant numbers in the national economy, such as
bakery worker and garment bagger. (R. 20-21).
In plaintiff’s memorandum in support of her motion for summary
judgment, she argues that, although the ALJ found that Dr.
Walcutt’s opinion was entitled to significant weight, the ALJ’s
21
hypothetical question failed to include all of the mental
limitations described by Dr. Walcutt.
(ECF No. 19-1, 5).
Specifically, plaintiff argues that “the ALJ’s hypothetical
question did not take into account Dr. Walcutt’s opinion that
Ms. Baxter has a moderate [sic] limitations in performing within
a schedule, maintaining regular attendance, and responding to
changes in a work setting.”
(Id). Plaintiff did concede,
however, that the ALJ’s RFC assessment did include those
limitations, stating:
In any his [sic] decision the ALJ described
all of the mental limitations that Dr.
Walcutt
found,
including
moderate
limitations in performing activities within
a schedule, maintaining regular attendance,
complete
[sic]
a
normal
workday
and
workweek, and respond [sic] to changes in
the work setting.
(Id.).
Defendant countered in its motion for summary judgment that
the ALJ’s hypothetical was completely consistent with his RFC,
(ECF No. 24-1, 14), which plaintiff had not challenged.
In response, plaintiff argued that “[t]he ALJ erred by not
including in his RFC assessment and hypothetical question” some
of the moderate mental limitations found by Dr. Walcutt,
including, inter alia, limitations in plaintiff’s “ability to
perform activities within a schedule, to maintain regular
attendance, and to respond appropriately to changes in the work
22
setting.”9 (ECF NO. 31, 5-6) (emphasis added).
Plaintiff’s latter argument completely contradicts the
concession she made in her memorandum in support of summary
judgment, and the Court finds no merit in it.
Plaintiff was
correct the first time when she acknowledged the ALJ’s
consideration of the mental limitations in his RFC assessment.
The ALJ explicitly stated the following in his opinion:
Dr. Walcutt, Ph.D., a State agency medical
expert, reviewed the evidence of record and
opined the claimant has moderate limitations
on her ability to . . . perform activities
within
a
schedule,
maintain
regular
attendance, be punctual within customary
tolerances,
.
.
.
[and]
respond
appropriately
to
changes
in
the
work
setting.
(R. 18-19).
The ALJ concluded that “Dr. Walcutt’s opinions are
entitled to significant weight to the extent they are consistent
with the above residual functional capacity found by the
undersigned.” (R. 19) (emphasis added).
The ALJ’s consideration
of Dr. Walcutt’s findings was adequate.
Thus, the ALJ’s
hypothetical, which mirrored the RFC, was also adequate.
9
In support of this second argument, plaintiff cites a recent
opinion by Judge Gallagher, Good v. Astrue, No. SAG-09-2030,
District of Maryland, September 27, 2011) (remanding DIB and SSI
determination where ALJ failed to discuss many of claimant’s
moderate limitations in function-by-function RFC analysis).
That case is distinguishable. As discussed below, both the
ALJ’s RFC assessment and the ALJ’s hypothetical in this case do
include the three moderate mental limitations that plaintiff
claims are absent from the RFC assessment and hypothetical.
23
VI.
CONCLUSION
For the reasons set forth above, the Court finds that,
although the ALJ adequately addressed Dr. Walcutt’s opinions
concerning plaintiff’s moderate mental limitations in both his
RFC assessment and his hypothetical, the ALJ improperly
evaluated the opinion of Dr. Grace-Lee.
Accordingly, the Court
DENIES plaintiff’s motion for summary judgment (ECF No. 19),
DENIES defendant’s motion for summary judgment (ECF No. 24), and
REMANDS for action consistent with this opinion.
Despite
the
informal
nature
of
this
letter,
it
shall
constitute an Order of the Court, and the Clerk is directed to
docket it accordingly.
Sincerely yours,
/s/
Susan K. Gauvey
United States Magistrate Judge
24
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