Napier v. Astrue
Filing
16
MEMORANDUM OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 5/1/13. (dass, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-4560
Fax (410) 962-3630
May 1, 2013
LETTER TO COUNSEL:
RE:
Shawn Michael Napier v. Michael J. Astrue, Commissioner, Social Security
Administration;
Civil No. TJS-12-1096
Dear Counsel:
This matter is before me by the parties’ consent. (ECF Nos. 3, 7). On April 11, 2012,
Plaintiff Shawn Michael Napier (“Mr. Napier”) petitioned this Court to review the Social
Security Administration’s final decision to deny his claim for Supplemental Security Income
(“SSI”). (ECF No. 1). I have considered Mr. Napier’s Motion for Summary Judgment (ECF No.
14) and the Commissioner’s Motion for Summary Judgment (ECF No. 15). I find that no
hearing is necessary. Local Rule 105.6. This Court must uphold the decision of the agency if it
is supported by substantial evidence and if the agency employed the proper legal standards. See
42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). For the
reasons that follow, I will grant the Commissioner’s motion and deny the Plaintiff’s motion.
This letter explains my rationale.
Mr. Napier applied for SSI on September 10, 2008, alleging disability commencing
March 18, 2008. (Tr. 179-185). Mr. Napier’s claims were denied initially on December 15,
2008, and upon reconsideration on April 14, 2009. (Tr. 68, 69). A hearing was held on March 9,
2011 before an Administrative Law Judge (“ALJ”). (Tr. 25-66). Following the hearing, on June
24, 2011, the ALJ determined that Mr. Napier was not disabled within the meaning of the Social
Security Act during the relevant time frame. (Tr. 10-24). On February 13, 2012, the Appeals
Council denied Mr. Napier’s request for further review of the ALJ’s decision. (Tr. 1-3). The
ALJ’s decision dated June 24, 2011 constitutes the final, reviewable decision of the agency.
The ALJ evaluated Mr. Napier’s claim for benefits using the five-step sequential
evaluation process set forth in 20 C.F.R. § 416.920. At step one, the ALJ found that Mr. Napier
was not engaged in substantial gainful activity, and had not been engaged in substantial gainful
activity since September 10, 2008, when he applied for SSI. (Tr. 15). At step two, the ALJ
found that Mr. Napier suffered from the severe impairments of “hernia status post successful
surgical repair,” obesity, major depressive disorder, post-traumatic stress disorder, and substance
abuse (alcohol and marijuana) in recent remission. (Tr. 15). The ALJ also found that Mr. Napier
suffered from several non-severe impairments, including elevated liver enzymes, and occasional
pain from stab wounds to the head, arm and side that he suffered in 2006. (Tr. 15). At step
three, the ALJ found that Mr. Napier’s impairments, separately and in combination, failed to
meet or equal in severity any listed impairment. (Tr. 15-16).
The ALJ then determined that, despite Mr. Napier’s severe impairments, he retained the
residual functional capacity (“RFC”) to:
Perform medium work as defined in 20 CFR 416.967(c) except that he is further
limited to: carrying out simple tasks in 2-hour increments (which can be
accommodated by regularly scheduled breaks); having occasional interaction with
coworkers, supervisors, and the general public; and adapting to simple changes in
a routine work setting.
(Tr. 16).
At step four, the ALJ determined that Mr. Napier is unable to perform any past relevant
work. (Tr. 19). At step five, however, the ALJ determined that considering Mr. Napier’s “age,
education, work experience and residual functional capacity, there are other jobs that exist in
significant numbers that [he] can perform.” (Tr. 124). As a result of this determination, the ALJ
found that Mr. Napier was not disabled during the relevant time frame.
Mr. Napier presents several arguments on appeal. First, Mr. Napier contends that the
ALJ failed to properly weigh and assess opinion evidence provided by treating physicians and
other “treating health care providers.” (ECF No. 14-1 at 3). Second, Mr. Napier argues that the
ALJ failed to properly evaluate his credibility. (ECF No. 14-1 at 5). Third, Mr. Napier argues
that the ALJ did not “sufficiently analyze” his mental impairments. (ECF No. 14-1 at 6).
Fourth, Mr. Napier argues that the ALJ’s evaluation of his activities of daily living was
improper. (ECF No. 14-1 at 10). Mr. Napier’s fifth argument is that the ALJ’s hypothetical
questions to a vocational expert were improper, because they did not properly set forth all of Mr.
Napier’s limitations. (ECF No. 14-1 at 10). I will address each of these arguments in turn.
First, Mr. Napier argues that the ALJ failed to properly weigh the opinions of his treating
physicians and the opinions of other treating sources. The opinion of a treating physician is
entitled to controlling weight when two conditions are met: 1) it is well-supported by medically
acceptable clinical laboratory diagnostic techniques and 2) it is consistent with other substantial
evidence in the record. See Craig, 76 F.3d at 590; see also 20 C.F.R. § 416.927(c). 1 Federal
regulations require an ALJ to assess a number of factors when considering what weight to assign
to the medical opinions presented. 20 C.F.R. § 416.927(c). While treating source opinions on
issues reserved to the Commissioner, such as determining a claimant’s RFC, are not entitled to
controlling weight, the ALJ must still evaluate all of the evidence in the case record to determine
the extent to which the physician’s opinion is supported by the record as a whole. Id. These
factors include: (1) the examining relationship between the physician and the claimant; (2) the
treatment relationship between the physician and the claimant; (3) the extent to which a medical
opinion is supported by relevant evidence; (4) the consistency of a medical opinion with the
1
Effective March 26, 2012, the Commissioner’s regulations concerning medical opinions
were revised, but without substantive change.
2
record as a whole; and, (5) whether the physician’s opinion relates to an area in which they are a
specialist. Id.
While the ALJ must generally give more weight to a treating physician’s opinion, see 20
C.F.R. § 416.927(c), where a treating physician’s opinion is not supported by clinical evidence
or is inconsistent with other substantial evidence, it should be accorded significantly less weight.
Craig, 76 F.3d at 590; 20 C.F.R. § 416.927(c)(2). Specifically, an ALJ may attribute little
weight to a treating source opinion when it is unsupported, inconsistent with other evidence in
the record, or based on a short term treating relationship. Id.; see also Hunter v. Sullivan, 993
F.2d 31, 35 (4th Cir. 1992) (“The ALJ may choose to give less weight to the testimony of a
treating physician if there is persuasive contrary evidence[.]”) The ALJ is also not required to
give controlling weight to a treating physician’s opinion on the ultimate issue of disability. 20
C.F.R. § 416.927(d); SSR 96–5p, 1996 WL 374183. Pursuant to 20 C.F.R. § 416.927(e)(2)(ii),
the ALJ is required to “explain in the decision the weight given to . . . any opinions from treating
sources, nonteaching sources, and other non-examining sources who do not work for [the Social
Security Administration].”
In addition to the opinions of “acceptable medical sources,” see 20 C.F.R. § 416.913(a)
(defining “acceptable medical sources”), an ALJ is also required to consider opinions from
“other sources,” such as nurse-practitioners, physicians’ assistants, and therapists. 20 C.F.R. §
416.913(d). These opinions, however, are not to be afforded controlling weight, and should be
evaluated in consideration of a number of factors:
How long the source has known and how frequently the source has seen the
individual; How consistent the opinion is with other evidence; The degree to
which the source presents relevant evidence to support an opinion; How well the
source explains the opinion; Whether the source has a specialty or area of
expertise related to the individual’s impairment(s); and Any other factors that tend
to support or refute the opinion.
SSR 06-03P, 200 WL 2329939 (Aug. 9, 2006) (noting that “[n]ot every factor for weighing
opinion evidence will apply in every case”). Similarly, ALJs should evaluate opinions from
“non-medical sources,” such as teachers, social workers, counselors and relatives, using the same
factors, to the extent that they are relevant to the source. Id.
In this case, the ALJ appropriately considered the opinion of Mr. Napier’s treating
physician, Dr. Harvey Itskowitz, and properly gave the opinion little weight. (Tr. 18). Dr.
Itskowitz’s opinion that Mr. Napier had marked functional limitations in all areas with repeated
episodes of extended decompensation is not supported by other evidence in the record. This
opinion derives from a form questionnaire that Dr. Itskowitz completed, where Dr. Itskowitz
circled “yes” or “no” to a number of questions submitted by Mr. Napier’s attorney, and checked
a number of boxes on a Medical Report Form. (Tr. 329-32, 396-98). Dr. Itskowitz did not
support his answers to these questions with any explanation of medically acceptable clinical
laboratory diagnostic techniques or discussion of other evidence in the record. In addition, as the
ALJ noted, his answers are not even corroborated by his own treatment notes. (Tr. 18). For
instance, while Dr. Itskowitz stated that Mr. Napier had marked limitations in mental functioning
3
(Tr. 331), his own treatment notes reflect that Mr. Napier’s mental status was normal, with a sad
or anxious mood. Additionally, in August 2008, Dr. Itskowitz assigned Mr. Napier a GAF score
of 58.2 (Tr. 413-50). The ALJ properly determined that Dr. Itskowitz’s opinion was entitled to
little weight. Mr. Napier’s argument that the ALJ failed to “give sufficient reasons” for giving
little weight to Dr. Itskowitz’s opinion is without merit, as the ALJ adequately explained the
manner in which he viewed Dr. Itskowitz’s opinion as inconsistent with his own treatment notes,
and as being unsupported by other objective evidence in the record. (Tr. 18).
The ALJ also appropriately considered the opinions of a number of “other sources.”
Paula Cornish, a licensed clinical social worker, opined that Mr. Napier had “severe, unremitting
psychiatric issues that affect his ability to work.” (Tr. 392). Another licensed clinical social
worker, Patti Cooper, expressed her opinion that Mr. Napier had “been unable to work,” and
experienced marked limitations in all areas. (Tr. 393-401). The ALJ properly determined that
these opinions were entitled to little weight, as they are conclusory, not supported by objective
medical evidence and inconsistent with other credible evidence in the record. The ALJ’s
evaluation of the opinion evidence was legally proper and supported by substantial evidence.
Mr. Napier’s second argument is that the ALJ failed to properly evaluate his credibility
concerning the intensity, persistence, and functionally limiting effects of his symptoms. (ECF
No. 14-1 at 5). When an ALJ evaluates a claimant’s subjective complaints, the regulations
provide a two-step evaluation process. 20 C.F.R. § 416.929. First, the ALJ must determine
whether the claimant has a medically determinable impairment capable of causing the symptoms
alleged. Id. Next, the ALJ must evaluate to what extent the symptoms limit the claimant’s
functioning. Id. An ALJ’s determination of a claimant’s credibility must take into consideration
a number of factors, in addition to other objective medical evidence. These factors include:
1. The individual’s daily activities; 2. The location, duration, frequency, and
intensity of the individual’s pain or other symptoms; 3. Factors that precipitate
and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to alleviate pain or other
symptoms; 5. Treatment, other than medication, the individual receives or has
2
The Global Assessment of Functioning (“GAF”) scale is a method of considering
psychological, social, and occupational function on a hypothetical continuum of mental health.
Johnson v. Astrue, No. TMD-10-947, 2011 WL 5149574 at *2 (D. Md. Oct. 27, 2011) (citing
Diagnostic and Statistical Manual of Mental Disorders, Fourth Ed.). A GAF score is a
subjective determination that represents the clinician’s judgment of the
individual’s overall level of functioning. It ranges from 100 (superior functioning)
to 1 (persistent danger of severely hurting self or others, persistent inability to
maintain minimal personal hygiene, or serious suicidal act with clear expectation
of death). . . . A GAF rating of 51 to 60 signals the existence of moderate
difficulty in social or occupational functioning.
White v. Comm’r of Social Sec., 572 F.3d 272, 276 (6th Cir. 2009) (citing Edwards v. Barnhart,
383 F. Supp. 2d 920, 924 n.1 (E.D. Mich. 2005)).
4
received for relief of pain or other symptoms; 6. Any measures other than
treatment the individual uses or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and 7. Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.
SSR 96-79, 1996 WL 374186. An ALJ’s findings regarding a claimant’s credibility are entitled
to great weight. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (“Because he had the
opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ’s
observations concerning these questions are to be given great weight.”)
Here, the ALJ determined that Mr. Napier’s testimony about his symptoms was “not
entirely credible to the extent that [it is] inconsistent with” the RFC determination. (Tr. 17). The
ALJ supported her credibility determination with a discussion of evidence that indicated that Mr.
Napier’s hernia had resolved in 2011, that he had consistently reported only minimal psychiatric
complaints, that his condition had generally improved with treatment and medication, and that he
had regularly attended and participated in group counseling sessions since October 2010. (Tr.
17-18). This evidence is inconsistent with Mr. Napier’s testimony as to the severity of his
limitations. The ALJ’s evaluation of Mr. Napier’s credibility was proper, and her credibility
determination is supported by substantial evidence.
Third, Mr. Napier argues that the ALJ did not properly evaluate his “psychiatric
symptoms,” and should have found that he “met a psychiatric listing.” (ECF No. 14-1 at 6).
Chiefly, Mr. Napier contends that the ALJ failed to follow the steps outlined in 20 C.F.R. §
416.920a to evaluate his mental impairments.3 (ECF No. 14-1 at 7).
Where a claimant alleges a mental impairment, the ALJ must follow a “special
technique” outlined in 20 C.F.R. § 416.920a. The first step of this technique requires the ALJ to
evaluate a claimant’s “pertinent symptoms, signs and laboratory findings” to determine whether
the claimant has a “medically determinable mental impairment. 20 C.F.R. § 416.920a(b). Next,
the ALJ must rate the degree of the claimant’s functional limitations based on the “extent to
which [the] impairment(s) interferes with [the claimant’s] ability to function independently,
appropriately, effectively, and on a sustained basis.” Id. at (c)(2). The ALJ must then rate the
claimant’s degree of limitation in (1) activities of daily living; (2) social functioning; (3)
concentration, persistence, or pace; and (4) episodes of decompensation. Id. at (c)(3). For the
first three areas, a claimant’s limitations may be rated as “[n]one, mild, moderate, marked, [or]
extreme.” Id. To rate a claimant’s degree of limitation with respect to episodes of
decompensation, the ALJ uses a four-point scale, and rates the limitation as “[n]one, one or two,
three, [or] four or more.” Id. at (c)(4). Once the ALJ has rated the claimant’s functional
limitations, the ALJ must determine whether the mental impairment meets, or is equivalent to, a
listed mental disorder. Id. at (d)(2); 20 C.F.R., Pt. 404, Subpt. P, App. 1 (“Listing of
Impairments”). If the ALJ determines that the claimant’s mental impairment does not meet, or is
not equivalent to, a mental disorder in any Listing, the ALJ will then assess the claimant’s RFC.
3
Mr. Napier does not specify what the ALJ failed to do, and instead relies on the text of
the regulations to form the basis of his argument.
5
Id. at (d)(3).
In this case, the ALJ properly followed the special technique to evaluate Mr. Napier’s
mental impairments, and concluded that Mr. Napier had severe medically determinable
impairments, but that those impairments did not meet a Listing. (Tr. 15-16). The ALJ’s analysis
of Mr. Napier’s functional limitations, which is thoroughly set forth in her opinion, is supported
by substantial evidence. Mr. Napier provides no legal or factual basis for his argument, and it is
without merit.
Fourth, Mr. Napier argues that the ALJ improperly evaluated his ability to perform daily
activities. Mr. Napier’s Memorandum in Support of his Motion for Summary Judgment does not
specify how the ALJ failed in this regard. (ECF No. 14-1 at 10). The ALJ determined that Mr.
Napier “has no more than mild restriction” in activities of daily living. (Tr. 16). In support of
this conclusion, the ALJ cited to Mr. Napier’s ability to “meet his personal care needs and . . . to
regularly attend substance abuse counseling since October 2010.” (Tr. 16, 377). This finding is
supported by substantial evidence.
Finally, Mr. Napier argues that the ALJ’s hypothetical questions to the vocational expert
were improper because they did not properly set forth all of Mr. Napier’s limitations. (ECF No.
14-1 at 10). The Commissioner employs vocational experts to offer evidence as to whether a
claimant possesses the residual functional capacity to meet the demands of past relevant work or
adjust to other existing work. 20 C.F.R. § 416.960(b)-(c). The vocational expert may respond to
a hypothetical question about a person “with the physical and mental limitations imposed by the
claimant’s medical impairment(s).” 20 C.F.R. § 416.960(b)(2). “In order for a vocational
expert’s opinion to be relevant or helpful, it must be based upon a consideration of all other
evidence in the record, and it must be in response to proper hypothetical questions which fairly
set out all of claimant’s impairments.” Hines v. Barnhart, 453 F.3d 559, 566 (4th Cir. 2006)
(quoting Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)). A hypothetical question is
“unimpeachable if it adequately reflects a residual functional capacity for which the ALJ had
sufficient evidence.” Fisher v. Barnhart, 181 F. App’x 359, 364 (4th Cir. 2006) (quoting
Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005)) (internal quotation marks omitted). An
ALJ is not required to use the services of a vocational expert, and may exercise his or her
discretion to determine whether such services are necessary in a given case. 20 C.F.R. §
416.966(e) (“[W]e may use the services of a vocational expert or other specialist. We will decide
whether to use a vocational expert or other specialist.”); see also SSR 83-14, 1983 WL 31254, at
*4 (1983) (“The publications listed in sections 404.1566 and 416.966 of the regulations will be
sufficient for relatively simple issues.”)
In this case, the ALJ did not use the services of a vocational expert. Instead, the ALJ
determined that, in accordance with the Dictionary of Occupational Titles, there is work that
exists in the national economy that Mr. Napier can perform, in light of his RFC. (Tr. 20).
Because the ALJ did not call a vocational expert to testify, let alone direct any hypothetical
questions to a vocational expert, Mr. Napier’s argument necessarily fails.
For the reasons set forth herein, Mr. Napier’s Motion for Summary Judgment (ECF No.
14) will be DENIED, and the Commissioner’s Motion for Summary Judgment (ECF No. 15) will
6
be GRANTED. The clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion.
implementing Order follows.
Sincerely yours,
/s/
Timothy J. Sullivan
United States Magistrate Judge
7
An
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?