McGougan, Sr. v.Colvin

Filing 19

REPORT AND RECOMMENDATIONS re 18 Defendant's MOTION for Summary Judgment and 14 Plaintiff's MOTION for Summary Judgment. Signed by: Judge Magistrate Judge Stephanie A Gallagher Objections to R&R due by 2/10/2014. Signed by Magistrate Judge Stephanie A Gallagher on 1/23/14. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DENNIS LEE MCGOUGAN, SR.

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v.
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Civil Case No. JKB-13-52
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COMMISSIONER, SOCIAL SECURITY
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2013-06, the above-referenced case was referred to me to
review the parties’ dispositive cross-motions and to make recommendations pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the parties’ cross-motions
for summary judgment. ECF Nos. 14, 18. 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). I find that no hearing is necessary. Local R. 105.6 (D. Md. 2011). For the
reasons set forth below, I recommend that the Commissioner’s motion be granted and that Mr.
McGougan’s motion be denied.
Mr. McGougan applied for Supplemental Security Income and Disability Insurance
Benefits on October 7, 2009, alleging a disability onset date of June 14, 2009.1 (Tr. 155-61).
His claims were denied initially on January 25, 2010, and on reconsideration on September 13,
2010. (Tr. 76-80, 83-86). An Administrative Law Judge (“ALJ”) held a hearing on December
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Mr. McGougan alleges that he later amended the onset date to March, 2010, and suggests that the ALJ
erred by considering the earlier onset date and not the amended onset date. Pl. Mot. 2. The
Commissioner contends that the date was not properly amended. Def. Mot. 19. Even assuming that the
ALJ failed to note a proper amendment of the onset date, the error would be harmless because the ALJ’s
opinion considers the time frame from June 14, 2009, through the date of the opinion on January 6, 2012.
(Tr. 12-20). Clearly, then, the narrower period from March, 2010 through the date of the opinion was
also considered. Moreover, there would be no error in reviewing the period from June 14, 2009 through
March, 2010, because an ALJ is required to develop a claimant’s medical history dating back at least one
year preceding the date an application is filed. See 20 C.F.R. 404.1512(d).

19, 2011, (Tr. 26-71), and subsequently denied benefits to Mr. McGougan in a written opinion,
(Tr. 9-24).

The Appeals Council declined review, (Tr. 1-6), making the ALJ’s decision the

final, reviewable decision of the agency.
The ALJ found that Mr. McGougan suffered from the severe impairments of
hypertension; cardiomegaly; hyperlipidemia; substance abuse; alcohol dependence; psychotic
disorder; bipolar disorder; umbilical hernia; and arthritis in his hands, wrists and shoulders. (Tr.
15).

The ALJ concluded that Mr. McGougan’s impairments, including his substance use

disorders, render him unable to work. (Tr. 15). However, the ALJ further concluded that if Mr.
McGougan stopped substance use, he would continue to have severe impairments, but would
retain the residual functional capacity (“RFC”) to
perform the full range of medium work as defined in 20 CFR 404.1567(c) and
416.967(c) except he is limited to occasional climbing of ramps and stairs; and
occasional balancing, stooping, kneeling, crouching, and crawling. He can never
climb ladders, ropes and scaffolds; and can frequently perform bilateral overhead
reaching, handling and fingering. He must avoid concentrated exposure to
extreme heat and cold; excess vibration; hazardous machinery; and unprotected
heights. In addition, he is limited to simple, routine and repetitive tasks in a low
stress environment with no strict production quotas; and is limited to occasional,
superficial interaction with the public, co-workers, and supervisors.
(Tr. 17-18). After considering testimony from a vocational expert (“VE”), the ALJ determined
that Mr. McGougan could perform his past relevant work as a bakery indexer, and that he was
not therefore disabled. (Tr. 20).
Mr. McGougan disagrees. He asserts several arguments in support of his appeal: (1) that
the ALJ should have concluded that he met Listing 12.03 even in the absence of substance use;
(2) that the ALJ assigned inadequate weight to the opinion of his treating physician; (3) that the
ALJ did not properly assess his past relevant work; and (4) that the ALJ failed to consider his
impairments in combination. Each argument lacks merit.
Mr. McGougan’s first argument is that he should have been deemed to meet Listing
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12.03 (schizophrenic, paranoid and other psychotic disorders). Pl. Mot. 27-30. The ALJ found
that he met the criteria of that Listing, but that if he stopped substance abuse, he would no longer
meet the criteria. (Tr. 15-16). In support of that position, the ALJ cited to evidence from the
medical records and to Mr. McGougan’s own testimony about his activities and capabilities
during his period of sobriety. (Tr. 16-17)

The ALJ provided concrete examples of Mr.

McGougan’s activities to support his conclusion that, absent substance use, Mr. McGougan
suffered only mild restriction in activities of daily living, no more than moderate difficulties in
social functioning and concentration, persistence and pace, and no episodes of decompensation.
Id. For example, the ALJ noted that, when sober, Mr. McGougan does household chores,
performs personal care, attends social events such as picnics and barbeques, reads newspapers
and novels, exhibits no deficits in memory, attention, or concentration, and has no inpatient care
or emergency treatment for mental health issues. Id. That evidence constitutes substantial
evidence to support the conclusion that, absent substance use, the Listing was not met. Mr.
McGougan cites evidence demonstrating that he continued to experience mental illness after his
sobriety.2 Pl. Mot. 29. However, continued mental illness does not equal the criteria of the
Listing. The ALJ acknowledged that Mr. McGougan continued to experience mental health
issues in finding him to suffer from severe mental impairments and in including mental healthrelated limitations in his RFC. (Tr. 15, 17-18).
In conjunction with his Listing argument, Mr. McGougan also challenged the ALJ’s
characterization of the medical evidence from Spring Grove Hospital and from the consultative
examiner, Dr. Hirsch. Pl. Mot. 27-28. The ALJ summarized the records from Spring Grove by
noting that, in a January 2010 competency evaluation, Mr. McGougan was found to have a
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In fact, Mr. McGougan relies exclusively on Dr. Mee’s January and December 2011 opinions, finding
marked restrictions in cognitive functioning, and repeated episodes of decompensation. As discussed
below, the ALJ properly discounted Dr. Mee’s opinions as they are unsupported and contradicted by his
own examination notes.

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restricted affect, and to be irritable, argumentative, and possibly responding to internal stimuli.
(Tr. 18-19, 300). He was admitted for in-patient psychiatric care. (Tr. 300). Less than a month
later, on February 17, 2010, Mr. McGougan was found competent to stand trial. (Tr. 296). Upon
release, with at least one month of sobriety, Mr. McGougan denied any suicidal or homicidal
ideation, or any auditory or visual hallucinations. (Tr. 296). The ALJ did, in fact, misstate the
date on which Mr. McGougan was found competent to stand trial, but explicitly considered the
severe symptoms related to his mental health observed upon intake. Mr. McGougan also takes
issue with the ALJ’s interpretation of his GAF score of 45, assessed upon release. Pl. Mot. 28.
GAF scores are not determinative of disability.3 See, e.g., Davis v. Astrue, Case No. JKS–09–
2545, 2010 WL 5237850, at *3 (D. Md. Dec. 15, 2010) (noting that the SSA has specified that
the GAF scale does not correlate to severity requirements in the mental disorders listings). With
respect to Dr. Hirsch’s consultative evaluation, the ALJ noted its deficiencies, including its
internal inconsistencies and its failure to address the effect of Mr. McGougan’s substance use.
(Tr. 19). The ALJ also summarized Dr. Hirsch’s somewhat inconsistent conclusions, including
his assignment of a GAF score of 50 and his simultaneous findings that Mr. McGougan can
perform complex tasks. Id. Overall, the ALJ adequately demonstrated a consideration of the
records from both Spring Grove and Dr. Hirsch.
Next, Mr. McGougan argues that the ALJ erred by assigning too little weight to the
opinions of his treating psychiatrist, Dr. Matthew Mee. Pl. Mot. 30-32. Initially, it is worth
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The difficulty with assigning significant weight to GAF scores is the fact that those scores can be
lowered by factors other than the pure severity of a claimant’s mental impairments. For example, a
claimant’s physical health impacts his GAF score. Physical health, however, is properly considered by
the ALJ using evidence from the medical sources who are treating the physical issues. A claimant with
less significant mental health conditions who reports serious physical ailments to the evaluating mental
health provider will have a lower GAF score. Moreover, GAF scores also incorporate difficulties with
occupational and financial functioning. Inherently, an applicant for Social Security disability benefits has
an unstable occupational situation, and his GAF score will be lowered accordingly. For example, the
GAF scores assigned to Mr. McGougan during his hospitalization at Spring Grove, which occurred for
the purpose of considering his competency to stand trial for a criminal offense, would be lowered as a
result of that personal circumstance.

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noting that Mr. McGougan’s file contains substantial evidence that could be marshaled to
support or to undermine a finding of disability. This Court’s role is not to reweigh the evidence
or to substitute its judgment for that of the ALJ, but simply to adjudicate whether the ALJ's
decision was supported by substantial evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). Here, the ALJ’s decision meets that standard.
A treating physician’s opinion merits controlling weight only when two conditions are
met: 1) it is well-supported by medically acceptable clinical and laboratory diagnostic
techniques; and 2) it is not inconsistent with other substantial evidence in the record. See 20
C.F.R. § 404.1527(c)(2); Craig v. Chater, 76 F.3d at 590 (refined by a later amendment to
regulations as described by Pittman v. Massanari, 141 F.Supp.2d 601, 608 (W.D.N.C. 2001)).
As the ALJ noted, Dr. Mee’s own treatment notes indicated significantly higher levels of
functioning than indicated in his Medical Assessment reports. Compare (Tr. 406-07, 413, 415)
(demonstrating relatively moderate symptoms) with (Tr. 394-99) (Medical Assessment Reports
suggesting an inability to work). The ALJ appropriately considered that discrepancy between the
treatment notes and Dr. Mee’s opinions. See Forsyth v. Astrue, No. CBD-09-2776, 2011 WL
691581, at *4 (D. Md. Feb. 18, 2011) (finding the ALJ properly assigned less than controlling
weight where, in relevant part, the physician's conclusions were inconsistent with his own
medical records); Cramer v. Astrue, No. 9:10–1872–SB–BM, 2011 WL 4055406, at *9 (D.S.C.
Sept. 12, 2011) (upholding assignment of less than controlling weight to opinions “that were
based in large part on the Plaintiff's self-reported symptoms rather than clinical evidence and that
were not consistent with the doctor's own treatment notes”); see generally 20 C.F.R. §
404.1527(c)(3) (stating that “[t]he more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory findings, the more weight we will give that
opinion.”). Moreover, as the ALJ noted, Dr. Mee himself assigned widely discrepant GAF
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scores to Mr. McGougan at different points in time. (Tr. 19). The ALJ, in fact, assigned
“substantial weight” to one of the GAF scores assigned by Dr. Mee. Id. In light of the
substantial evidence undermining the allegations in Dr. Mee’s opinion forms, and the fact that
this Court is not to reweigh the evidence considered by the ALJ, remand is unwarranted.
Mr. McGougan further contends that the ALJ conducted an insufficient inquiry into the
physical demands of his past relevant work. Pl. Mot. 32-34. In support of that argument, Mr.
McGougan cites a work history report in which he described his job of “bakery indexer” to
require him to lift more than 100 pounds at a time. (Tr. 220). Likely in response to that work
history report, at the hearing, the VE originally classified the past relevant work as a “mixer of
dough,” at a heavy exertional level with an SVP of 5. (Tr. 63). However, during the VE
testimony, Mr. McGougan’s representative asked that Mr. McGougan be permitted to testify to
clarify his precise job duties. (Tr. 66). Mr. McGougan testified that he did not do any mixing,
and that he simply removed bad dough from the production line. Id. He also testified that,
before he was transferred to the production line, he did mechanical work at the bakery trying to
fix the machines. (Tr. 66-67). In response to those descriptions, the VE testified that Mr.
McGougan’s job as “bakery indexer” fit within the description of a bakery worker who did
packaging and packing, which would be at the medium level of exertion, SVP 2; or a bakery
worker on an assembly line at the light level of exertion, again SVP 2. (Tr. 67). The VE
therefore opined that Mr. McGougan was capable of performing his past relevant work. (Tr. 67).
Mr. McGougan’s attorney had the opportunity to question the VE, and did not offer any facts to
suggest that the VE’s understanding of or classification of the position was inaccurate. (Tr. 6869). The claimant bears the burden to establish that he cannot perform his past relevant work.
Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987).

Because the ALJ credited the VE’s

testimony, which was based on the substantial evidence derived from Mr. McGougan’s own
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testimony at the hearing, Mr. McGougan has failed to meet that burden.
Finally, Mr. McGougan submits that the ALJ failed to consider his physical and mental
impairments in combination.

Pl. Mot. 29-30, 34-35.

In support of that argument, Mr.

McGougan alleges that the ALJ “did not even have an RFC assessment addressing Mr.
McGougan’s physical limitations.” Pl. Mot. 34. In fact, however, the ALJ expressly considered
the evidence relating to Mr. McGougan’s physical impairments in his RFC analysis, (Tr. 19), and
imposed RFC restrictions relating to Mr. McGougan’s physical condition, including postural
limitations, environmental limitations, and a restriction to frequent (as opposed to constant)
overhead reaching, handling, and fingering. (Tr. 17). In light of the ALJ’s opinion, there is no
basis on which to conclude that the ALJ inadequately discharged his duty to consider all of Mr.
McGougan’s impairments in combination.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1.

the Court GRANT Defendant’s Motion for Summary Judgment (ECF No. 18);

2.

the Court DENY Plaintiff’s Motion for Summary Judgment (ECF No. 14) and

and

CLOSE this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b) and Local Rule 301.5.b.

Dated: January 23, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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