Veal v. Astrue
Filing
20
LETTER OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 9/19/13. (apls, 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
(410) 962-7780
Fax (410) 962-1812
September 19, 2013
LETTER TO COUNSEL
RE:
Lawrence J. Veal v. Commissioner, Social Security Administration;
Civil No. SAG-12-2619
Dear Counsel:
On September 4, 2012, claimant Lawrence Veal petitioned this Court to review the Social
Security Administration’s final decision to deny his claims for Supplemental Security Income
(“SSI”) and Disability Insurance Benefits (“DIB”). (ECF No. 1). I have considered the parties’
cross-motions for summary judgment. (ECF Nos. 15, 19). I find that no hearing is necessary.
Local R. 105.6 (D. Md. 2011). This Court must uphold the decision of the agency if it is
supported by substantial evidence and if the agency employed proper legal standards. See 42
U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that
standard, I will grant the Commissioner’s motion and deny the Plaintiff’s motion. This letter
explains my rationale.
Mr. Veal filed his claim for benefits on March 5, 2007, alleging a disability onset date of
September 1, 2006.1 (Tr. 227-30). His claims were denied initially on April 12, 2007, and on
reconsideration on August 03, 2007. (Tr. 185-89, 191-94). A hearing was held on September
12, 2008 before an Administrative Law Judge (“ALJ”). (Tr. 135-75). Following the hearing, on
November 4, 2008, the ALJ determined that Mr. Veal was not disabled. (Tr. 117-34). The
Appeals Council (“AC”) granted Mr. Veal’s request for review, and remanded the case to the
ALJ with instructions to conduct further fact finding into Mr. Veal’s mental impairments. (Tr.
103-12). In doing so, the AC reopened a later favorable decision made by the State Agency that
found Mr. Veal disabled as of November 1, 2008, and consolidated the two claims. (Tr. 105).
The ALJ held a second hearing on October 27, 2010. (Tr. 36-68). On December 16, 2010 the
ALJ again found that Mr. Veal was not disabled within the meaning of the act. (Tr. 18-31). Mr.
Veal requested a second time that the AC review the ALJ’s decision. (Tr. 12-14). The AC
granted review, and issued a partially favorable decision on August 16, 2012, finding Mr. Veal
disabled as of August 31, 2009, when he turned fifty five, but adopting the ALJ’s finding of not
disabled prior to that date. (Tr. 1-9). The AC’s August, 2012 decision constitutes the final,
reviewable decision of the agency.
1
Mr. Veal’s SSI application is not included in the record, but it appears that he filed it on January 5,
2007. (Tr. 120).
Lawrence J. Veal v. Commissioner, Social Security Administration
Civil No. SAG-12-2619
September 19, 2013
Page 2
The AC found that Mr. Veal had the following severe impairments: left knee pain statuspost arthroscopic surgery, decreased hearing, depressive disorder, anxiety disorder, and bipolar
disorder. (Tr. 7). However, the AC adopted the finding of the ALJ that Mr. Veal retained the
residual functional capacity (“RFC”) to:
[P]erform light work as defined in 20 CRF 404.1567(b), except he can never
climb ladders, ropes, or scaffolds, and can only occasionally perform all other
postural activities. He is further limited to simple, unskilled work that is not
performed at a production-rate pace; does not require travel; is isolated and
requires only occasional contact with supervisors, co-workers, and the general
public; and does not involve exposure to background noise. Finally, he is limited
to low-stress work, defined as work requiring only occasional changes in setting,
occasional decision-making, and occasional use of judgment.
(Tr. 6). Based on that RFC, after Mr. Veal turned age fifty five on August 31, 2009, MedicalVocational Rule 202.02 (“the Grids”) directed a finding that he was disabled. (Tr. 6).
Mr. Veal presents two primary arguments on appeal: (1) that the ALJ failed to follow the
instructions in the appeals order, and (2) that the ALJ failed to properly evaluate and assign
proper weight to the medical evidence. Both arguments lack merit.
Mr. Veal’s first argument is unpersuasive. A failure by the ALJ to follow the precise
dictates of the AC does not automatically warrant remand. See Yonek v. Astrue, No. TMD 092905, 2011 WL 1231154 (D. Md. Mar. 28, 2011). Further, “regardless of whether the ALJ fully
complied with the Appeals Council's remand order, judicial review is limited to the question [of]
whether the ALJ's decision is supported by substantial evidence and reflects application of the
correct legal standards.” Fajardo v. Astrue, CV 08-01615 AJW, 2010 WL 273168, at *3 (C.D.
Cal. Jan. 14, 2010). Here, the ALJ found that Mr. Veal’s June, 2010 psychological consultative
examination fulfilled the AC’s directive to “[o]btain evidence from a medical expert to clarify
the nature and severity of the claimant’s mental impairments.” (Tr. 40-41). The AC chose not to
remand the case a second time, indicating that the AC considered the ALJ’s decision to be
sufficiently in compliance with the remand order. Accordingly, Mr. Veal’s first argument fails,
and remand is therefore unwarranted on that basis.
Mr. Veal’s second primary argument is that the ALJ failed to properly evaluate the
medical opinions in the record.2 First, he argues that ALJ assigned too little weight to the
opinion of treating psychiatrist Dr. Wessells. A treating physician's opinion is given 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 v. Chater, 76 F.3d 585 (4th Cir. 1996); see also 20 C.F.R. § 404.1527(d)(2).
Dr. Wessells opined that Mr. Veal had poor to no ability to deal with work stress, maintain
2
Because the AC adopted the findings and rationale of the ALJ’s December, 2010 opinion, as it pertained
to the period before August 31, 2009, it is appropriate to review that opinion.
Lawrence J. Veal v. Commissioner, Social Security Administration
Civil No. SAG-12-2619
September 19, 2013
Page 3
attention and concentration, and understand and carry out complex and detailed job instructions.
(Tr. 478-79). The ALJ gave little weight to that part of Dr. Wessells’s opinion because she
found “it is unsupported by the evidence of record[.]” (Tr. 27). However, she gave “some
weight” to Dr. Wessells’s opinion that Mr. Veal could follow work rules and carry out simple job
instructions, but that he was limited in his social capabilities. Id. In her detailed review of the
medical evidence, the ALJ noted that Dr. Wessells’s treatment notes consistently noted that Mr.
Veal experienced improvement in sleep and had a stable mood after his inpatient admission for
depression, anxiety, and bipolar disorder. (Tr. 25, 484-84, 496, 498-99, 507, 520-21). Dr.
Wessells’s treatment notes, as the ALJ observed, are inconsistent with his opinion that Mr. Veal
had severe limitations in his ability to concentrate, and his ability to handle work stresses and
complex job instructions. Accordingly, I find the ALJ’s assignment of little to some weight to
Dr. Wessells’s opinion was appropriate and based on substantial evidence.
Further, Mr. Veal asserts that the ALJ erroneously discounted the opinions of the state
psychological consultants, Drs. Ewell and Ganter. In a Psychiatric Review Technique and
Mental Residual Function Capacity Assessment, Dr. Ewell concluded that Mr. Veal had “marked
restrictions in concentration, persistence, and pace.” (Tr. 547). The ALJ gave Dr. Ewell’s
assessment little weight, because he “did not consider the medical record as a whole.” (Tr. 28).
The ALJ found that Mr. Veal’s response to medication and his reported activities contradicted
Dr. Ewell’s finding of more severe limitations. Id. Dr. Ganter prepared a psychological
consultative evaluation, and opined that Mr. Veal’s “understanding is generally adequate, but
there is severe impairment of memory, sustained concentration and persistence.” (Tr. 543-44).
Further, Dr. Ganter noted that Mr. Veal was “quite distractible and [found] it difficult to focus on
the kind of material presented to him” on the Wechsler Adult Intelligence Scale III test. (Tr.
541). The ALJ gave Dr. Ganter’s opinion “little weight” and highlighted the inconsistencies
between his conclusions and the observations he recorded during the examination, as well as the
record as a whole. (Tr. 28-29). The ALJ noted that such a severe limitation is not at all
consistent with the GAF score of 60 that Dr. Ganter assessed, which indicated that Mr. Veal had
only moderate difficulties in social and occupational functioning. Further, the ALJ found Dr.
Ganter’s findings inconsistent with Mr. Veal’s statements reporting only that he “forgets where
he puts things and might forget an appointment.”3 (Tr. 564). Mr. Veal does not challenge the
ALJ’s assignment of weight to state psychological consultant Dr. Burlingame. However, Dr.
Burlingame also concluded that Mr. Veal’s concentration and task persistence were poor. (Tr.
566). Yet, he noted elsewhere in his opinion that Mr. Veal’s “attention and concentration
appeared to be functional and adequate” and that his mental status examination was within
normal limits. (Tr. 564). The ALJ accordingly assigned Dr. Burlingame “little weight.” (Tr.
29). I find that the ALJ’s assignment of decreased weight to the opinions of the state consultants
and consultative examiners was appropriate given the internal inconsistencies she noted, as well
3
Dr. Ganter also stated that Mr. Veal has “very serious problems in terms of social interaction,”
suggesting a “very serious impairment of ability to adapt to new situations.” (Tr. 544). However, that too
is inconsistent with his moderate GAF score finding. Moreover, the ALJ noted that Mr. Veal reported
that he socialized with his family, in particular his grandchildren, and lived with his wife. I find that the
ALJ had a sufficient basis for discounting this portion of Dr. Ganter’s opinion as well.
Lawrence J. Veal v. Commissioner, Social Security Administration
Civil No. SAG-12-2619
September 19, 2013
Page 4
as Mr. Veal’s self-reported activities and treatment records.
Finally, Mr. Veal challenges the assignment of “significant weight” to the findings by Dr.
Dale that Mr. Veal had a mild limitation in his activities of daily living, and a moderate
limitation in concentration, persistence, and pace. (Tr. 28, 469). The ALJ also assigned “little
weight” to Dr. Dale’s assessed mild limitation in Mr. Veal’s social functioning and his finding
that Mr. Veal had experienced one or two episodes of decompensation. (Tr. 28, 469). The
Commissioner must consider, and is entitled to rely on, opinions from non-examining doctors.
See SSR 96-6p, 1996 WL 374180, at *3 (“In appropriate circumstances, opinions from State
agency medical and psychological consultants and other program physicians and psychologists
may be entitled to greater weight than the opinions of treating or examining sources.”). As noted
above, the ALJ provided an extensive summary of the medical records, (Tr. 24-26), in which she
cited to adequate evidence to support her assessment of Mr. Veal’s mental capabilities.
Moreover, while Mr. Veal argues that Dr. Dale’s opinion is less valid because it was prepared in
2007, Pl. Mot. 8, it is the pre-August 2009 time frame that is most relevant, not the time of the
most recent hearing. Hence, I find no error in the ALJ’s assignment of greater weight to a
portion of Dr. Dale’s assessment.
For the reasons set forth herein, Plaintiff’s motion for summary judgment (ECF No. 15)
will be DENIED and the Commissioner’s motion for summary judgment (ECF No. 19) will 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/
Stephanie A. Gallagher
United States Magistrate Judge
An
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