Devaney v. Astrue

Filing 22

MEMORANDUM to Counsel. Signed by Magistrate Judge Stephanie A Gallagher on 10/28/13. (bmhs, 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]

October 28, 2013
LETTER TO COUNSEL:
RE:

Colleen Michele Devaney v. Commissioner, Social Security Administration;
Civil No. SAG-12-3081

Dear Counsel:

On October 18, 2012, the Plaintiff, Colleen Devaney, petitioned this Court to review the
Social Security Administration’s final decision to deny her claims for supplemental security
income (“SSI”) and disability insurance benefits. (ECF No. 1). I have considered the parties’
cross-motions for summary judgment and Ms. Devaney’s reply. (ECF Nos. 16, 20, 21). I find
that no hearing is necessary. Local Rule 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. 42 U.S.C. §§ 405(g), 1383(c)(3); see Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996) (superseded by statute on other grounds). Under that standard, I will grant the
Commissioner’s motion and deny Plaintiff’s motion. This letter explains my rationale.

Ms. Devaney filed her claims on May 15, 2009, alleging disability beginning on August
20, 2007. (Tr. 117-20). Her claims were denied initially on November 4, 2009, and upon
reconsideration on July 15, 2010. (Tr. 80-88). A hearing was held on March 23, 2011 before an
Administrative Law Judge (“ALJ”). (Tr. 36-75). Following the hearing, the ALJ determined
that Ms. Devaney was not disabled within the meaning of the Social Security Act during the
relevant time frame. (Tr. 21-35). The Appeals Council denied Ms. Devaney’s request for
review (Tr. 3-5), so the ALJ’s decision constitutes the final, reviewable decision of the agency.
The ALJ found that Ms. Devaney suffered from the severe impairments of Lyme disease,
chronic pain syndrome, chronic fatigue syndrome, gastritis, and depression. (Tr. 23). Despite
these impairments, the ALJ determined that Ms. Devaney retained the residual functional
capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that
the claimant can lift and carry 20 pounds occasionally, 10 pounds frequently, can
stand and walk for 2 hours in an 8 hour workday, and sit for 6 hours in an 8 hour
workday. The claimant can occasionally stoop, crouch, crawl, balance, kneel,
squat and climb stairs but should avoid exposure to hazards, ladders, scaffolds,
dangerous heights and dangerous machinery, and avoid concentrated exposure to
heat, cold, humidity, dust, fumes, gases and vibrations. The claimant can
understand, remember and carry out simple one to two step instructions.

Colleen Michele Devaney v. Commissioner, Social Security Administration;
Civil No. SAG-12-3081
October 28, 2013
Page 2

(Tr. 26). After considering the testimony of a vocational expert, the ALJ determined that Ms.
Devaney could not perform her past relevant work as a waitress/bartender, preschool teacher,
veterinarian’s assistant, or retail salesperson. (Tr. 33). However, considering Ms. Devaney’s
age, education, work experience, and RFC, the ALJ determined that there are jobs existing in
significant numbers in the national economy that Ms. Devaney can perform. (Tr. 34).
Ms. Devaney presents several challenges to the ALJ’s RFC finding. First, Ms. Devaney
argues that the mental limitation in the RFC was not supported by substantial evidence. Second,
Ms. Devaney argues that the ALJ failed to weigh the opinion of Dr. Jemsek, resulting in an
incomplete assessment of her medical record. Third, Ms. Devaney contends that the ALJ
selectively picked various reports in the medical record to support the conclusion that Ms.
Devaney had a normal range of functional abilities. Each argument lacks merit.
Ms. Devaney’s first argument consists of several sub-parts. She argues that the ALJ’s
RFC, which provided, in part, that Ms. Devaney can “understand, remember and carry out
simple one to two step instructions,” was unsupported by substantial evidence. Pl.’s Mot. 15.
She also argues that the ALJ improperly weighed the opinion of a social worker, Ms. Sauro, who
concluded in a treatment summary that Ms. Devaney could follow one and two-step instructions
only “occasionally (1-2 days/wk),” and that her “fatigue and concentration made it difficult for
her to complete simple tasks.” (Tr. 642). Ms. Devaney contends that the ALJ’s failure to
consider the “occasional” nature of her ability to perform simple instructions impacted the ALJ’s
conclusions at step five of the sequential analysis. Pl.’s Mot. 16-18. At step five, the ALJ posed
a hypothetical to the VE, which did not include a limitation on Ms. Devaney’s ability to carry out
one and two-step instructions. Thus, Ms. Devaney argues, the VE overrepresented the
occupations that were available to Ms. Devaney. I disagree.
The ALJ “has great latitude in posing hypothetical questions and is free to accept or
reject suggested restrictions so long as there is substantial evidence to support the ultimate
question.” Koonce v. Apfel, No. 98–1144, 1999 WL 7864, at *5 (4th Cir. Jan. 11, 1999) (citing
Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986)). In the ALJ’s first hypothetical, she
posed the following: “[Ms. Devaney] can understand, remember and carryout simple
instructions, one and two-step instructions with no problem at all, and at the level of simple
instructions…she may have to concentrate a bit, but at simple instructions she can concentrate
and pay attention at that level of complexity…” (Tr. 70). Substantial evidence exists in the
record to support this restriction. The ALJ discussed this evidence in her assignment of weight
to Ms. Sauro’s opinion.
The ALJ accorded great weight to Ms. Sauro’s opinion regarding Ms. Devaney’s ability
to follow one and two-step instructions. However, the remainder of Ms. Sauro’s opinion was
inconsistent with the record, and given “little weight.” (Tr. 33). Social workers are not
considered “acceptable medical sources” whose medical opinions may be entitled to controlling
weight. SSR 06-03p. The ALJ properly set forth the standard for evaluating medical sources
that do not fall under the “acceptable medical source” standard. (Tr. 32). One factor for
evaluating the opinions of “other sources” includes consideration of “how consistent the opinion

Colleen Michele Devaney v. Commissioner, Social Security Administration;
Civil No. SAG-12-3081
October 28, 2013
Page 3

is with other evidence.” SSR 06-03p. Ms. Sauro stated that Ms. Devaney had poor
concentration and “frequent periods of brain fog.” (Tr. 641). Ms. Sauro also indicated that Ms.
Devaney’s ability to relate to others was “dramatically affected” and that attending work would
be “a serious problem.”
(Tr. 642). The ALJ concluded that Ms. Sauro’s opinion was
inconsistent with: (1) Ms. Sauro’s own treatment summary, which indicated that Ms. Devaney
was responding well to mental therapy sessions; (2) Ms. Devaney’s admission that she was a
social person and had no issues with authority figures; (3) evaluation notes from Dr. Malik and
Dr. Abbas showing that Ms. Devaney did not have impaired concentration; and (4) Ms.
Devaney’s admission that her mental status had substantially improved. (Tr. 33). I agree.
A review of the inconsistencies between Ms. Sauro’s treatment summary and the medical
evidence of record supports the ALJ’s decision to give the bulk of the summary little weight.
Ms. Sauro’s treatment summary stated that although Ms. Devaney had a “fair” to “good”
response to therapy, she was “working to maintain [a] fragile stability.” (Tr. 640). Ms. Sauro
also stated that the goal of therapy was for Ms. Devaney “to find enough energy and will to keep
seeking treatment for Lyme Disease.” (Tr. 642). At her hearing, Ms. Devaney admitted that she
was “starting to feel better,” and had “seen an improvement” in her condition. (Tr. 48, 54). Ms.
Devaney’s hearing testimony also suggested that she has no problem relating to others. Ms.
Devaney stated that she “enjoy[s] spending time with friends” and that on occasion, a best friend
from Delaware visits her. (Tr. 48-49). Finally, the reports from two consultative examiners, Dr.
Malik and Dr. Abbas, both showed normal cognitive function and abstract thinking. (Tr. 557,
741). A mental RFC assessment indicated that Ms. Devaney had no significant limitations in her
ability to understand and carry out short and simple instructions, or to make simple work-related
decisions. (Tr. 762). Therefore, I find the ALJ’s assignment of “little weight” to the bulk of Ms.
Sauro’s summary to be supported by substantial evidence in the record. Accordingly, I also
uphold the ALJ’s mental restriction as set forth in both the hypothetical to the VE, and in the
RFC.
Ms. Devaney next argues that the ALJ failed to assign weight to the opinion of a treating
physician, Dr. Jemsek. However, a review of the medical evidence shows two records from Dr.
Jemsek, neither of which contains an opinion as to Ms. Devaney’s ability to perform specific
work related activities. The December 22, 2009 record contains a narrative of Dr. Jemsek’s
impressions and recommendations following his initial evaluation of Ms. Devaney. (Tr. 621-28).
In this evaluation, Dr. Jemsek noted that Ms. Devaney was “fatigued during the examination”
and “had frequent repetitive dystonic movement with jerking mainly of the upper body, face,
head and neck area.” (Tr. 626). However, Dr. Jemsek did not opine as to whether these
symptoms affected Ms. Devaney’s ability to perform work-related activities. Id. The evaluation
also contained rankings regarding the severity of Ms. Devaney’s symptoms in several areas, such
as “cognitive dysfunction.” (Tr. 623). Ms. Devaney ranked her cognitive dysfunction at “5-6”
on a scale of 10, and an accompanying description provided that Ms. Devaney “has had more
panic attacks in the last year than she had in the past.” Id. These rankings and descriptions were
provided to Dr. Jemsek by Ms. Devaney, and the ALJ concluded that Ms. Devaney’s subjective
complaints were not credible. (Tr. 33). Moreover, given the lack of a longitudinal relationship
between Ms. Devaney and Dr. Jemsek at the time of the December 22, 2009 report, his

Colleen Michele Devaney v. Commissioner, Social Security Administration;
Civil No. SAG-12-3081
October 28, 2013
Page 4

evaluation is entitled to no greater weight than the consultative examiners’ reports, with which
they were inconsistent. Compare (Tr. 621-27), with (Tr. 553-58, 737-42). The second medical
record contains notes from a conversation between Dr. Jemsek and Ms. Sauro on February 3,
2010. (Tr. 628). These notes indicate that Dr. Jemsek has seen Ms. Devaney only twice. Id.
They too are devoid of any opinion regarding Ms. Devaney’s ability to perform work-related
functions. While an ALJ must make an assignment of weight to a medical opinion, the ALJ need
not assign weight to every treatment note or medical report. The ALJ appropriately considered
and summarized Dr. Jemsek’s notes. (Tr. 28). Therefore, I find that the ALJ’s decision to not
assign specific weight to Dr. Jemsek’s records does not warrant remand.
Finally, Ms. Devaney argues that the ALJ “cherry picked” portions of various medical
and function reports to improperly conclude that she has a normal range of functional abilities.
Pl.’s Mot. 28. The ALJ pointed to two consultative examinations and an Adult Function Report
to reach the conclusion that Ms. Devaney “has performed a generally normal range of functional
abilities, which is inconsistent with a finding of disability.” (Tr. 30). An October 15, 2009
consultative examination report from Dr. Malik stated that Ms. Devaney was “not able to do
usual cleaning,” and had trouble vacuum cleaning. (Tr. 555). A June 7, 2010 consultative
examination report from Dr. Abbas noted that Ms. Devaney could not cook or clean. (Tr. 739).
In both doctors’ reports, however, Ms. Devaney stated that she could clean dishes, wash laundry,
bathe, and brush her teeth. (Tr. 555, 739). Both reports also stated that Ms. Devaney had
friends, got along with others, and was social. Id. Ms. Devaney’s own Adult Function Report
corroborated the consultative examinations. In the report, Ms. Devaney stated that, “on a good
day” she could “put in a load of laundry and perform personal care tasks such as dressing,
bathing, and shaving.” (Tr. 173-74). Furthermore, Ms. Devaney stated at the hearing, and in an
affidavit, that she was enrolled in a phlebotomy course at a community college that met twice a
week for four hours at a time. (Tr. 42, 47, 256).
Substantial evidence of Ms. Devaney’s functional abilities exists elsewhere in the record.
In one report, Ms. Devaney stated that she could perform “light housework” such as dusting,
using a hand vacuum, and sorting and folding laundry. (Tr. 131). In another report, an examiner
concluded that Ms. Devaney “should not have difficulty in doing work-related activities such as
sitting, standing, walking, lifting, carrying, and handling objects.” (Tr. 744). As a result, I find
that the ALJ’s conclusion that Ms. Devaney has a normal range of functional abilities to be
supported by substantial evidence. Moreover, an ALJ is not required to address every piece of
evidence in the record, so long as a reviewing court can determine from the opinion “what the
ALJ did and why he did it.” Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir.
1999) (citing Lane Hollow Coal Co. v. Dir., Office of Workers' Comp. Programs, 137 F.3d 799,
803 (4th Cir.1998)); see also Melgarejo v. Astrue, No. JKS 08–3140, 2009 WL 5030706, at *4
(D. Md. Dec. 15, 2009) (all holding that an ALJ's duty to explain his findings and conclusions on
all material issues of fact or law is satisfied when a reviewing court can determine, from an
ALJ's opinion and the evidence of record, how he reached his conclusion). While it might be
equally possible to select excerpts from the medical evidence to support a determination of
disability, the function of this Court is not to review Ms. Devaney’s claims de novo or to reweigh
the evidence of record. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Rather, this

Colleen Michele Devaney v. Commissioner, Social Security Administration;
Civil No. SAG-12-3081
October 28, 2013
Page 5

Court is to determine whether, upon review of the whole record, the Commissioner’s decision is
supported by substantial evidence and a proper application of the law. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987); see 42
U.S.C. § 405(g). I find that it is.
Thus, for the reasons given, Ms. Devaney’s Motion for Summary Judgment (ECF No.
16) will be DENIED, and the Commissioner's Motion for Summary Judgment (ECF No. 20) 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

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