Isabell v. Astrue

Filing 17

REPORT AND RECOMMENDATIONS re 14 MOTION for Summary Judgment filed by James Isabell, 16 MOTION for Summary Judgment filed by Carolyn W. Colvin Objections to R&R due by 11/15/2013. Signed by Magistrate Judge Stephanie A Gallagher on 10/29/13. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES ISABELL

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v.
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COMMISSIONER, SOCIAL SECURITY
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Civil Case No. JKB-13-0479

REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2013-06, the above-referenced case was referred to me to
review the parties’ cross-motions for summary judgment and to make recommendations pursuant
to 28 U.S.C. § 636(b) and Local Rule 301.5(b)(ix). I have considered the parties’ motions. ECF
Nos. 14, 16.

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 both motions be denied, and that the case be remanded to the
Commissioner for further proceedings in accordance with this Report and Recommendations.
Mr. Isabell applied for Supplemental Security Income on March 17, 2009, initially
alleging a disability onset date of January 1, 2007.1 (Tr. 141-44). His claim was denied initially
on August 4, 2009, and on reconsideration on April 16, 2010.

(Tr. 82-85, 86-87).

An

Administrative Law Judge (“ALJ”) held a hearing on June 8, 2011, (Tr. 27-77), and subsequently
denied benefits to Mr. Isabell in a written opinion dated October 11, 2011. (Tr. 10-26).

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. Isabell suffered from the severe impairments of depression,
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Mr. Isabell later amended his onset date to March 17, 2009. (Tr. 31).

anxiety, right eye blindness, substance abuse, and left flank pain. (Tr. 15). Despite these
impairments, the ALJ determined that Mr. Isabell 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: routine, unskilled and repetitive tasks; occasional interaction with the
public and co-workers; and, has monocular vision, limiting him to never climbing
ladders, ropes or scaffolds, limited depth perception, and avoiding all exposure to
hazards.
(Tr. 18). After considering testimony from a vocational expert (“VE”), the ALJ determined
alternatively that Mr. Isabell was capable of his past relevant work as a landscaper and
warehouse worker, and that there were other jobs existing in significant numbers in the national
economy that Mr. Isabell could perform. (Tr. 20-21). Accordingly, the ALJ determined that Mr.
Isabell was not disabled. (Tr. 22).
Mr. Isabell disagrees. He raises six primary arguments in support of his appeal: (1) that
the ALJ's mental RFC is not supported by substantial evidence; (2) that the ALJ assigned
inadequate weight to the opinion of his treating psychiatrist, Dr. Yi; (3) that the ALJ assigned
inadequate weight to the opinion of his primary treating physician, Dr. Stewart; (4) that the ALJ
provided insufficient analysis to support his physical RFC; (5) that the ALJ erroneously made
alternative findings at Steps 4 and 5; and (6) that the ALJ's hypotheticals to the VE were
inadequate. Although most of Mr. Isabell's arguments lack merit, I concur that the record
contains inadequate medical information regarding Mr. Isabell's mental RFC, particularly in light
of the ALJ’s assignment of little weight to Dr. Yi's opinion. As a result, I recommend that the
case be remanded for further development of the record regarding Mr. Isabell's mental
impairments. In so recommending, I express no opinion as to whether the ALJ's ultimate
conclusion that Mr. Isabell is not entitled to benefits is correct or incorrect.

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Beginning with the unpersuasive arguments, the ALJ's assignment of "little weight" to
the opinion of treating physician Dr. Stewart was supported by substantial evidence. Dr. Stewart
issued an opinion on March 30, 2011, in which he stated that Mr. Isabell could not sit for six
hours out of an eight hour workday, stand/walk for two hours out of an eight hour workday, or
lift up to 10 pounds on a sustained basis. (Tr. 322). Dr. Stewart based that assessment of Mr.
Isabell’s ability to sit, stand, walk, and lift on "poor vision" and "chronic pain." Id. It is difficult
to fathom how poor vision would affect Mr. Isabell’s exertional capacities. Moreover, as the
ALJ noted, in Mr. Isabell's own adult function report, he reported no issues with sitting or
standing, and the ability to lift up to 30 pounds. (Tr. 211). Mr. Isabell's adult function report
was corroborated by the adult function report completed by his mother, who likewise reported
that he had no restrictions in sitting, standing, or walking. (Tr. 193). The ALJ also accurately
pointed out that Dr. Stewart's treatment notes did not reflect the level of impairment set forth in
his opinion, and that he prescribed only Tramadol and Naproxen for Mr. Isabell. (Tr. 19, 32526).

In light of the substantial evidence supporting the ALJ’s assignment of little weight,

remand is unwarranted.
Moreover, contrary to Mr. Isabell’s assertions, the ALJ's physical RFC was
adequate. The ALJ’s visual restrictions to address Mr. Isabell’s monocular vision, specifically
the limitation to “never climbing ladders, ropes or scaffolds, limited depth perception, and
avoiding all exposure to hazards[,]” (Tr. 18), are consistent with the most recent eye examination
in the record, reflecting “a normal left eye.” (Tr. 309). The ALJ’s three-page RFC analysis also
evaluates the other physical limitations suggested by Dr. Stewart, as set forth above. Although
he did not specifically address Mr. Isabell’s ability to sit, stand, and walk, his determination that
Mr. Isabell was capable of a reduced range of medium work contains inherent findings as to
those abilities. See SSR 83-10, at *6 (“A full range of medium work requires standing or

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walking, off and on, for a total of approximately 6 hours in an 8-hour workday . . . As in light
work, sitting may occur intermittently during the remaining time.”). In fact, the limitation to
medium work despite the opinion of Dr. Najar suggesting no exertional limitations, (Tr. 302),
evidences the careful weighing of the evidence of record. As a result, there is no error in the
physical RFC assessment.
Mr. Isabell next suggests that the ALJ was required to terminate the analysis once he
made a “not disabled” finding at Step Four, finding Mr. Isabell capable of performing past
relevant work. However, ALJs frequently continue with their analysis and make alternative
findings at Steps Four and Five. Although the Fourth Circuit has not addressed the propriety of
such alternative findings, other circuits have upheld them. See e.g., Murrell v. Shalala, 43 F.3d
1388 (10th Cir. 1994) (alternative dispositions are viewed favorably); Barton v. Apfel, No. 98–
2484, 1999 WL 314127, at *2 (8th Cir. May 17, 1999) (same). I concur with the analysis in
those cases, because the finding at Step Four is not negatively impacted by a like finding of “not
disabled” at Step Five. There is therefore no reason to preclude alternative findings, which can
ensure that an ALJ’s opinion reaches a valid result even if the ALJ commits an error at either
Step Four or Five.
Mr. Isabell’s final unpersuasive argument is that the hypotheticals posed to the VE were
inadequate. First, Mr. Isabell contends that the ALJ's hypotheticals referred to exhibit numbers
that do not contain the cited information. Pl. Mot. 32-35. At the beginning of the ALJ's opinion,
he notes that "Exhibit 9F, from Community Behavioral Services, is a treatment record for
someone other than the claimant and has been removed from the record." (Tr. 13). Although the
ALJ does not clarify at what stage in the process the record was removed, it appears that it was
removed subsequent to the hearing and the drafting of the ALJ's analysis, and that the remaining
exhibits were renumbered accordingly before the current transcript was prepared. See Court

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Transcript Index (noting that Exhibit 9F is now "Office Treatment Records, dated 10/23/2009,
from University of Maryland Family Practice.") The citations in the hypothetical question to
Exhibits 12F and 16F refer to what are now exhibits 11F (Dr. Najar physical RFC assessment)
and 15F (Dr. Stewart opinion). While Mr. Isabell also speculates that the VE may have
responded to the hypothetical questions without actually having the ability to view the exhibits,
there is no evidence in the hearing transcript to suggest that the VE did not have access to the
records. The VE asked no clarifying questions, and in fact affirmatively indicated that she was
able to see the exhibits. See, e.g. (Tr. 74) ("Q. All right. Okay. I want you to look at, then, at
12F. A. Yes, sir.").
Mr. Isabell’s other arguments regarding the hypothetical also lack merit. Although Dr.
Najar found no physical limitations, and the ALJ did not modify the hypothetical to impose an
exertional restriction, the VE testified that there were light jobs that Mr. Isabell could perform.
(Tr. 75). Because the ALJ addressed all of Mr. Isabell’s other restrictions in his hypothetical, the
fact that Mr. Isabell may in fact be capable of a greater exertional level than that addressed by
the VE does not indicate an inability to perform the light jobs the VE identified. Moreover, the
ALJ’s decision to reject the VE’s testimony that Mr. Isabell could perform his PRW as a cook,
which is a skilled position, simply reflects that the ALJ carefully considered the VE testimony
rather than blindly accepting its veracity. That decision does not invalidate the remainder of the
VE’s testimony. Finally, Mr. Isabell argues that the ALJ did not include some of the limitations
found by various physicians in the hypothetical. Pl. Mot. 33-34. However, the ALJ is afforded
“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,

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807 F.2d 771, 774 (9th Cir. 1986)). Because, as addressed above, the physical RFC was
sufficient, there is no inherent issue with that portion of the hypothetical.
Mr. Isabell succeeds, however, in arguing that the ALJ had insufficient evidence to
evaluate his mental RFC, and therefore to form a hypothetical based on that RFC. The opinion
from Mr. Isabell’s treating psychiatrist, Dr. Yi, indicates that Dr. Yi completed a psychosocial
evaluation on October 25, 2010. (Tr. 336). October 25, 2010 is also listed as the “date patient
first seen” on Dr. Yi’s opinion form. Id. However, evidence from that psychosocial evaluation
appears to be missing from the record. Instead, the record contains only notes from Mr. Isabell’s
six subsequent treatment sessions with Dr. Yi’s office. (Tr. 318-19, 331-34). Because the ALJ
did not have Dr. Yi’s complete file, his finding that Dr. Yi’s opinion was “inconsistent with the
claimant’s treatment records” is invalid.2 (Tr. 16). Moreover, given the assignment of "little
weight" to Dr. Yi's opinion, the ALJ was left without any medical basis for his mental
RFC. Although an ALJ is typically not required to base an RFC on the opinion of a medical
expert, this particular case is distinguishable because of the lack of additional evidence (opinion
or otherwise) pertaining to Mr. Isabell’s mental health. In light of the record containing only a
single medical opinion, which the ALJ does not find persuasive, use of a consultative examiner
would provide a further evidentiary basis for an adequate mental RFC assessment.

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I note that Mr. Isabell had only six subsequent therapy appointments over a seven-month
period, including a four-month gap in treatment. (Tr. 318-19, 331-34). The infrequency of
therapy and conservative nature of the treatment, in addition to some indication of Mr. Isabell’s
non-compliance with recommended therapy sessions, may have informed the ALJ's evaluation.
Nevertheless, because Dr. Yi is the only treating or examining mental health provider in the
record, it is important that the ALJ have his complete file for consideration. The record
evidences no effort by the ALJ to obtain the psychosocial evaluation. Although the regulation
has since been modified, at the time of the ALJ’s opinion, the agency had a duty to recontact the
treating physician to resolve the conflict or ambiguity between the treatment notes and the
opinion. See 20 CFR 404.1512(e) (effective June 13, 2011) (modified March 26, 2012 to
eliminate the duty to recontact).
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CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant’s Motion for Summary Judgment (ECF No. 14);
2. the Court DENY Plaintiff’s Motion for Summary Judgment (ECF No.16); and
3. the Court order the Clerk to REMAND the case to the Commissioner for further
proceedings and to 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: October 29, 2013

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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