Scott v. Colvin

Filing 17

REPORT AND RECOMMENDATIONS re 15 MOTION for Summary Judgment filed by Carolyn W. Colvin, 13 MOTION for Summary Judgment filed by Mark Anthony Scott Signed by: Judge Magistrate Judge Stephanie A Gallagher Objections to R&R due by 4/21/2014. Signed by Magistrate Judge Stephanie A Gallagher on 4/2/14. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARK ANTHONY SCOTT
v.
COMMISSIONER, SOCIAL SECURITY

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Civil Case No. RDB-13-0819
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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’ cross-motions for summary judgment 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’ motions
and the Plaintiff’s reply. ECF Nos. 13, 15, 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 the Commissioner’s motion be granted and the
Plaintiff’s motion be denied.
Mr. Scott applied for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) on August 13, 2009, alleging a disability onset date of April 1, 2005. (Tr. 26570). At the hearing, Mr. Scott amended his onset date to August 1, 2009. (Tr. 53-54). His
claims were denied initially on January 11, 2010, and on reconsideration on September 21, 2010.
(Tr. 155-62, 170-76). An Administrative Law Judge (“ALJ”) held a hearing on October 12,
2011, (Tr. 45-106), and subsequently denied benefits to Mr. Scott in a written opinion. (Tr. 1830). 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. Scott suffered from the severe impairments of status post lumbar
fusion during 1997, obesity, right hand numbness post injury, and depression. (Tr. 21). Despite
these impairments, the ALJ determined that Mr. Scott 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 could occasionally lift and/or carry 20 pounds, frequently lift and/or
carry 10 pounds, stand and/or walk for 6 hours and sit for about 6 hours in an 8hour workday. The claimant could occasionally climb ramps or stairs, balance,
stoop, kneel, crouch and crawl. The claimant should never climb ladders, ropes
or scaffolds. Handling, fingering and feeling with the dominant right hand should
be frequent as opposed to constant. He should avoid concentrated exposure to
hazards, dusts, odors, gasses, poor ventilation and temperature extremes. He
should have simple, unskilled work, work that is essentially isolated with only
occasional supervision. In general, he should have only occasional contact with
co-workers. The claimant can perform low stress work, defined as only occasional
changes in the work setting, and work not a production pace, meaning paid by the
piece or on a production line.
(Tr. 23). After considering testimony from a vocational expert (“VE”), the ALJ determined that
Mr. Scott was capable of performing jobs that exist in significant numbers in the national
economy, and that he was not therefore disabled. (Tr. 29-30).
Mr. Scott raises three arguments on appeal. First, he argues that the ALJ failed to assign
proper weight to the opinions of several sources. Second, he disagrees with the ALJ’s analysis
of his mental impairments. Finally, he contends that the ALJ erred by denying his request for an
in-person hearing. Each argument lacks merit and is addressed sequentially.
Mr. Scott first argues that the ALJ improperly rejected the opinions of three medical
sources—Dr. Theodoru, a neurologist, Dr. Gill, a psychiatrist, and Amanda Glenn, a licensed
clinical social worker. All three sources treated Mr. Scott at some point, and each provided
opinions on his ability to work. The ALJ must generally give more weight to a treating source’s
opinion. See 20 C.F.R. § 404.1527(c)(2). However, where a treating source’s opinion is not

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supported by clinical evidence or is inconsistent with other substantial evidence, it should be
accorded significantly less weight. Craig, 76 F.3d at 590. The ALJ is not required to give
controlling weight to a treating source’s opinion on the ultimate issue of disability. SSR 96–5p,
1996 WL 374193, at *5 (July 2, 1986). If the ALJ does not give a treating source’s opinion
controlling weight, the ALJ will assign weight after applying several factors, such as, the length
and nature of the treatment relationship, the degree to which the opinion is supported by the
record as a whole, and any other factors that support or contradict the opinion. 20 C.F.R. §§
404.1527(c)(1)-(6); 416.927(c)(1)-(6).

Pursuant to Social Security regulations, the ALJ is

required to “give good reasons” for the weight assigned to a treating source’s opinion. 20 C.F.R.
§§ 404.1527(c)(2); 416.927(c)(2).
I find that the ALJ’s assignment of no weight to the opinions contained in Dr. Theodoru’s
March 3, 2011 Medical Source Statement is supported by substantial evidence.

The ALJ

reasoned that the Medical Source Statement was not supported by the longitudinal medical
record. (Tr. 28). The ALJ also stated that the opinions of Dr. Theodoru were “conclusory,”
“based on the claimant’s subjective complaints,” and were “outside of his range of expertise as
Dr. Theodoru’s specialty is Internal Medicine and he retains no specialization in Neurology,
Psychiatry or Orthopedics.” Id. Dr. Theodoru opined that Mr. Scott’s low back pain and
sarcoidosis allowed him to sit, stand, or walk between 0-2 hours per day, and that Mr. Scott
could never lift 20 or 50 pounds. (Tr. 1098). Dr. Theodoru also noted that while Mr. Scott was
capable of low stress, his psychological limitations affected his ability to work at a regular job on
a sustained basis. (Tr. 1099-1100).
Several records contradict Dr. Theodoru’s conclusions. A Physical RFC Assessment by
Dr. Najar, a state agency medical consultant, opined that Mr. Scott was capable of lifting 20

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pounds occasionally, 10 pounds frequently, and sitting, standing, or walking about 6 hours in an
8 hour workday. (Tr. 1007). The ALJ accorded Dr. Najar’s opinions great weight because she
found that they, unlike the opinions of Dr. Theodoru, were supported by the medical evidence of
record. (Tr. 26). The ALJ pointed to records that demonstrated that Mr. Scott’s lower back pain
was not disabling. See (Tr. 25, 998-99) (citing normal gait and station, no swelling or deformity
in the lower lumbar region, and moderate tenderness at L4 and L5 lumbar vertebrae). Other
evidence of record also supports the ALJ’s conclusions. See (Tr. 1271-77) (describing low back
and knee pain as “stable” and recommending exercise and stretching); (Tr. 1284) (stating that
“back pain OK with current meds”). While it would be possible to cite evidence from Mr.
Scott’s medical record that supports some of Dr. Theodoru’s recommended limitations, see (Tr.
1014-15), it is not the role of this Court to weigh conflicting evidence, determine credibility, or
substitute its judgment for that of the Commissioner’s. See Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). Moreover, as noted above, the ALJ has the discretion to accord a treating
source’s opinion less than controlling weight.
Mr. Scott argues further that the “opinion” of disability by Dr. Prafull K. Dave,1 a
neurologist, comports with Dr. Theodoru’s findings, and that the ALJ committed error by failing
to discuss or assign weight to Dr. Prafull’s opinion. Pl.’s Mot. 11; Pl.’s Reply 2-3. Mr. Scott is
incorrect on both points. First, Dr. Prafull never provided an independent opinion of Mr. Scott’s
ability to work. In a Medical Evaluation Report dated February 17, 2010, Dr. Prafull described
Mr. Scott’s subjective complaints, which included “snoring heavily,” “feel[ing] very sleepy
during the daytime,” and “doz[ing] off while waiting on the red light.” (Tr. 1014). In the
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Both Mr. Scott and the Commissioner refer to Dr. Prafull K. Dave by his first name only. See Pl.’s Mot. 11; Pl.’s
Reply 2-3; Def.’s Mot. 13. For consistency, and to avoid confusion, I too will refer to Dr. Prafull by his first name.
However, I have adopted the spelling of Dr. Prafull’s name that appears on his letterhead and signature line. See
(Tr. 1014-15). I note that the ALJ and Mr. Scott have adopted a different spelling. See (Tr. 25; Pl.’s Mot. 11; Pl.’s
Reply 2-3).

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sentence that immediately followed the narrative of subjective complaints, Dr. Prafull stated that,
“[c]urrently, the patient is disabled.” Id. When read in context, it is apparent that Dr. Prafull
was merely restating information that Mr. Scott conveyed. Furthermore, Dr. Prafull’s findings
were unremarkable and at odds with a finding of disability. Dr. Prafull noted that Mr. Scott was
“conscious, alert, and oriented to time, place, and persons.” Mr. Scott had normal higher cortical
function, normal cranial nerves from II to XII, normal coordination of limbs, and no speech and
language abnormalities. (Tr. 1015). The only neurological issue that Dr. Prafull noted was
short-term memory impairment. Id. Second, the ALJ did discuss Dr. Prafull’s report in the
opinion. See (Tr. 25). She properly did not characterize the report as an opinion, nor did she
assign it weight, because it is evident from context that it is not an opinion.
Substantial evidence also supports the ALJ’s assignment of weight to the opinions of Dr.
Gill and Ms. Glenn. The ALJ recognized Dr. Gill as a treating medical source, but rejected his
opinions because they were “not supported by his own medical records,” “conclusory,” and
“primarily based on the claimant’s subjective complaints.” (Tr. 28). The ALJ noted that Mr.
Scott’s records, which contained Global Assessment of Functioning (“GAF”) scores of 55 and
60, demonstrated “only moderate psychological symptomology,” which was at odds with Dr.
Gill’s opinions. Id.
I find insufficient support for the ALJ’s speculative contention that Dr. Gill’s records
were based primarily on Mr. Scott’s subjective complaints. However, I do find that Dr. Gill’s
records are inconsistent and contrary to Mr. Scott’s overall mental health evidence. The ALJ
pointed to three of Dr. Gill’s records – a February 22, 2010 Mental Capacities Evaluation, an
April 15, 2010 Medical Source Statement, and a February 23, 2011 Medical Source Statement.
All three records indicated that Mr. Scott exhibited symptoms such as “difficulty thinking or

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concentrating,” “paranoid thinking or inappropriate suspiciousness,” and “mood disturbance.”
(Tr. 1018, 1036, 1247). With respect to functional limitations, all three records similarly noted
no restriction of activities of daily living, marked difficulties in maintaining concentration,
persistence, or pace, and between one and three episodes of decompensation. (Tr. 1018, 1039,
1249). The records also consistently assessed GAF scores between 55 and 60. (Tr. 1018, 1035,
1246). However, the two Medical Source Statements differed significantly in their conclusions
regarding Mr. Scott’s mental abilities and the aptitude needed to perform work. The 2011
Medical Source Statement indicated that Mr. Scott was “seriously limited, but not precluded” in
all categories. See (Tr. 1248-49). The Medical Source Statement from April, 2010 noted that, in
many categories, Mr. Scott had “limited but satisfactory” mental abilities and aptitude to perform
work, while in other categories such as “accept[ing] instructions and respond[ing] appropriately
to criticism from supervisors,” Mr. Scott was “unable to meet competitive standards.” (Tr. 103738).
Some of Dr. Gill’s conclusions are also at odds with evidence in Mr. Scott’s medical
record. Dr. Polizos, a state agency medical consultant, completed a Mental RFC Assessment and
a Psychiatric Review Technique, both of which failed to corroborate the severe limitations
opined by Dr. Gill. Dr. Polizos found no marked limitations in understanding and memory,
sustained concentration and persistence, social interaction, and adaptation. See (Tr. 1001-02).
Dr. Polizos also concluded that the evidence in Mr. Scott’s file demonstrated an ability to
“understand remember and execute instructions...respond relate and adopt at work place...and
perform simple routine tasks.” Id. at 1003. In a Psychiatric Review Technique dated January 4,
2010, Dr. Polizos opined that Mr. Scott had mild restriction of activities of daily living, moderate
difficulties in maintaining social functioning, moderate difficulties in maintaining concentration,

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persistence or pace, and no episodes of decompensation, each of extended duration. (Tr. 1030).
The ALJ further noted that Dr. Polizos’s opinions in the Psychiatric Review Technique were
affirmed upon reconsideration by Gemma Nachbahr, a state agency psychological consultant.
See (Tr. 27, 1093). A Consultative Evaluation Report by Dr. Kradel noted relatively normal
mental status, and the ALJ highlighted the fact that Mr. Scott coaches athletic games. See (Tr.
989-92) (stating no signs of psychosis or mania, unremarkable behavior and thought content,
cooperative attitude, realistic thought-perception, and below-average judgment and insight); (Tr.
25) (stating that on February 9, 2011, Mr. Scott reported that he still enjoyed coaching games).
The ALJ’s assignment of no weight to Dr. Gill’s opinions was therefore supported by substantial
evidence.
I briefly note that while I find no error with the ALJ’s assignment of weight, I do not
agree with the ALJ that Dr. Gill’s opinions were primarily based on Mr. Scott’s subjective
complaints. Some of Dr. Gill’s progress notes contain narrative descriptions of Mr. Scott’s
condition, however, no such descriptions are present in any of the three opinions that the ALJ
cited. Compare (Tr. 1018, 1035-40, 1246-51) with (Tr. 1435) (progress note stating “I’m doing
pretty good”); (Tr. 1437) (progress note stating that Mr. Scott “feels more depressed”); (Tr.
1438) (progress note stating that Mr. Scott “has been down in dump in general”). There is
therefore no reason to attribute Dr. Gill’s opinions to the subjective complaints as opposed to his
clinical observations.
Mr. Scott asserts that the ALJ’s treatment of GAF scores was inconsistent throughout the
opinion. Pl.’s Mot. 10. In the ALJ’s review of the medical evidence, she stated that GAF scores
are subjective, not objective measures, which may not be entitled to great weight in making
disability determinations. (Tr. 26). Later in her opinion, the ALJ reasoned that Dr. Gill’s

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opinions were contrary to Mr. Scott’s GAF scores, which reflected “moderate mental
symptomology.” (Tr. 27). The ALJ’s statement did not reflect “circular logic,” nor was it
contradictory. It is well established that GAF scores are not determinative of disability. 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 score does not correlate to severity requirements
in the mental disorders listings). However, nothing prohibits an ALJ from considering GAF
scores as one component of a full analysis of the evidence of record. See, e.g., Kozel v. Astrue,
No. JKS–10–2180, 2012 WL 2951554, at *10 (D. Md. July 18, 2012) (“[E]ven though a GAF
score is not determinative of whether a person is disabled under SSA regulations, it may inform
an ALJ’s judgment.”). Therefore, the ALJ was correct to acknowledge the relevant standard
applicable to GAF scores, and to also consider the scores in her analysis of the medical record.
Mr. Scott also takes issue with the ALJ’s conclusion that Amanda Glenn, a licensed
clinical social worker, was not an acceptable medical source. Pl.’s Mot. 11-12. Mr. Scott
contends that Ms. Glenn is an acceptable medical source whose opinion is entitled to controlling
weight. Id. Only “acceptable medical sources” can be considered treating sources whose
medical opinions may be entitled to controlling weight. See SSR 06-03p, 2006 WL 2329939, at
*2 (Aug. 9, 2006). According to Social Security regulations, licensed clinical social workers are
not “acceptable medical sources.” Id. Rather, they are considered “other sources.” 20 CFR §§
404.1513(d); 416.913(d). The ALJ may evaluate opinion evidence from “other sources” by
considering several factors, such as: (1) how long the source has known and how frequently the
source has seen the individual; (2) how consistent the opinion is with other evidence; (3) the
degree to which the source presents relevant evidence to support an opinion; (4) how well the
source explains the opinion; (5) whether the source has a specialty or area of expertise related to

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the individual’s impairment(s); and (6) any other factors that tend to support or refute the
opinion. SSR 06-03p, at *4-5. Mr. Scott argues that a social worker may be deemed an
“acceptable medical source” if the social worker works closely with, or under the supervision of,
an acceptable medical source. Pl.’s Mot. 12. Mr. Scott contends that Ms. Glenn was a member
of Dr. Gill’s treatment team, thus she is properly considered an “acceptable medical source.” Id.
I do not accept Mr. Scott’s argument for several reasons. Chief among them is that the
Fourth Circuit has never held that a social worker may be considered an “acceptable medical
source” whose opinion is entitled to controlling weight. In fact, in Stroup v. Apfel, 205 F.3d
1334 (4th Cir. 2000), the Fourth Circuit expressly declined to reach the issue. Stroup, 205 F.3d
at, *4 (stating that the court need not consider whether the social worker was an acceptable
medical source because the social worker and a treating psychiatrist jointly diagnosed the
claimant). Mr. Scott erroneously relies upon two cases which interpreted a social security
provision that no longer exists. See Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996) (applying
20 C.F.R. § 416.913(a)(6), which then permitted the report of an interdisciplinary team to be
considered acceptable medical evidence, if the report contained the evaluation and signature of
an acceptable medical source); Mathis by Mathis v. Shalala, 890 F. Supp. 461, 464 (E.D.N.C.
1995) (same). Current social security regulations no longer include “interdisciplinary team” as
part of the definition of “acceptable medical sources.” See Hudson v. Astrue, No. CV-11-0025CI, 2012 WL 5328786, at *4 n.4 (E.D. Wash.); 20 CFR §§ 404.1513(a)(1-5); 416.913(a)(1-5).
The ALJ properly characterized Ms. Glenn as an “other source,” and recited the factors
relevant to evaluating opinions from those sources. The ALJ concluded that Ms. Glenn’s March
1, 2011 Medical Source Statement was entitled to “little weight” because its “findings of severe
limitations” were not supported by the longitudinal record. (Tr. 28). Ms. Glenn found that Mr.

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Scott suffered from “disorientation, hallucinations, anger outburst, short term memory deficits,
agitation, irritability, paranoia, [and a history] of depressive symptoms [with] suicidal ideation.”
(Tr. 1101). Ms. Glenn also noted that Mr. Scott reported “difficulties with concentration [and]
memory” and reported that “ ‘people are plotting against him.’ ” (Tr. 1104). Ms. Glenn
ultimately found that Mr. Scott had between mild and moderate restriction of activities of daily
living, marked difficulties in maintaining social functioning, marked difficulties in maintaining
concentration, persistence, or pace, and one or two episodes of decompensation within a oneyear period.

Id.

As noted in the discussion pertaining to Dr. Gill, the ALJ relied upon

substantial evidence in the record to support her conclusion that Mr. Scott’s mental impairments
were not disabling. Therefore, remand is not warranted.
Mr. Scott next argues that the ALJ failed to properly evaluate his mental impairments.
As part of his argument, he raises several sub-arguments. Specifically, he argues that, (1) the
ALJ failed to follow the “special technique” used to evaluate mental impairments; (2) the ALJ
made “verifiably false statements;” and (3) the ALJ failed to support her conclusions with
substantial evidence. Pl.’s Mot. 13-17. I disagree.
A “special technique” is used to evaluate a claimant’s mental impairments. The special
technique is set forth in 20 C.F.R. §§ 404.1520a, 416.920a. See also Robbers v. Comm’r of Soc.
Sec. Admin., 582 F.3d 647, 652–54 (6th Cir. 2009); Kohler v. Astrue, 546 F.3d 260, 265–66 (2d
Cir. 2008) (citing Schmidt v. Astrue, 496 F.3d 833, 844 n.4 (7th Cir. 2007)). The ALJ “must first
evaluate [the claimant’s] pertinent symptoms, signs, and laboratory findings to determine
whether [he or she] ha[s] a medically determinable mental impairment(s).” 20 C.F.R. §§
404.1520a(b)(1), 416.920a(b)(1). The ALJ must “then rate the degree of functional limitation
resulting from the impairment(s)” in four broad functional areas.

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Id. §§ 404.1520a(b)(2),

404.1520a(c), 416.920a(b)(2), 416.920a(c). The ALJ must document the application of the
technique in the hearing decision, incorporating pertinent findings and conclusions, and
documenting the significant history and functional limitations that were considered. Id. §§
404.1520a(e)(4), 416.920a(e)(4).
Here, the ALJ concluded that Mr. Scott suffered from the severe mental impairment of
depression. (Tr. 21). However, the ALJ stated that Mr. Scott’s mental impairments did not meet
or medically equal the criteria provided in Listings 12.04 and 12.09. Id. The ALJ reasoned that
Mr. Scott failed to satisfy the “paragraph B” and “paragraph C” criteria of the relevant Listings.
(Tr. 22). The “paragraph B” criteria require a showing of at least two of the following: marked
restriction of activities of daily living; marked difficulties in social functioning; marked
difficulties in maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration.

The ALJ concluded that Mr. Scott had only

moderate difficulties in social functioning and moderate difficulties in maintaining
concentration, persistence, or pace. See (Tr. 22). Mr. Scott contends that at least two sources
assessed limitations, which satisfied the “paragraph B” and “paragraph C” criteria. Pl.’s Mot.
16. Mr. Scott also points to evidence in his medical record, which he believes demonstrates
significant functional limitations, including evidence that he hears voices telling him to “kill
people” and evidence that he takes significant pain medication, which affects his concentration.
Id.
First, the ALJ’s application of the “special technique” was proper and the conclusions
reached by way of its application were supported by substantial evidence. As discussed above,
two state agency consultants found no marked limitations in any of the functional areas. With
respect to social functioning, the ALJ noted that Mr. Scott attends his daughter’s basketball

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games and high school games twice a week. See (Tr. 22, 391, 395, 416). Mr. Scott also
regularly visits a community center. See (Tr. 416). As support for the ALJ’s conclusion that Mr.
Scott has moderate difficulties in concentration, persistence, or pace, the ALJ stated that, “[h]e
becomes confused at times. Writing down helps somewhat. He takes medications o [sic] his
own.” Id. Although the ALJ did not consistently cite specific exhibits from Mr. Scott’s medical
record, her conclusions are supported by the record as a whole. Mr. Scott testified that he has “a
lot” of problems with memory and concentration. See (Tr. 80). However, it helps to write his
doctor’s appointments down. Id; see also (Tr. 991) (noting problematic memory, but average
score on WAIS-IV Digit Span, also noting generally logical thought processes, “gained”
attention, and adequate reasoning). The record similarly supports the ALJ’s conclusion that the
“paragraph C” criteria were not met. See (Tr. 1031) (Dr. Polizos indicating that the evidence
failed to establish the presence of “paragraph C” criteria”).
Second, Mr. Scott also takes issue with the ALJ’s statement that “no treating or
examining physician has mentioned any findings equivalent in severity to any listed
impairment.”

(Tr. 21).

The ALJ’s statement is plainly incorrect, as Dr. Gill consistently

concluded that Mr. Scott had marked difficulties in maintaining social functioning, marked
difficulties in maintaining concentration, persistence, or pace, and moderate or marked episodes
of decompensation within a 12-month period, each of at least two weeks duration. See (Tr. 1018,
1039, 1249). The ALJ’s statement, although factually incorrect, constitutes harmless error.
While at least two sources (Dr. Gill and Ms. Glenn), concluded that Mr. Scott satisfied the
“paragraph B” and “paragraph C” criteria required of mental impairments, the ALJ appropriately
accorded those opinions little to no weight.
Mr. Scott also contends that the ALJ failed to consider troubling evidence that he hears

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voices telling him to “kill people.” Pl.’s Mot. 16; (Tr. 1419). However, the Commissioner
correctly notes that Mr. Scott submitted this evidence to the Appeals Council. See (Tr. 4). Mr.
Scott responds that this evidence is new and material and that the Appeals Council erred by
failing to expressly explain it and to assign it weight. The Appeals Council did not provide a
substantive analysis of the new information, stating only that the additional evidence “did not
provide a basis for changing the Administrative Law Judge’s decision.” (Tr. 2). However, “the
regulatory scheme does not require the Appeals Council to do anything more than what it did in
this case, i.e., ‘consider new and material evidence...in deciding whether to grant review.’ ”
Meyer v. Astrue, 662 F.3d 700, 706 (4th Cir. 2011) (quoting Wilkins v. Sec’y. Dep’t of Health &
Human Servs., 953 F.2d 93, 95 (4th Cir. 1991) (en banc). The Appeals Council is not required to
take any specific action in response to new and material evidence, and is not required to provide
a detailed explanation of its evaluation. Id.
Here, the additional evidence consists largely of Ms. Glenn and Dr. Gill’s progress notes
from 2011-2012. See (Tr. 1419-50). The notes further describe and assess Mr. Scott’s mental
state, which is already well documented in the record. Moreover, the notes are inconsistent at
times. See (Tr. 1419-31) (noting that Mr. Scott’s symptoms were severe, and not worsening or
improving); (Tr. 1434, 1436) (noting mild-moderate symptoms with no change since last visit);
(Tr. 1435, 1437-38, 1449) (noting stable, mild-moderate symptoms); (Tr. 1439, 1445) (noting
improved mild-moderate symptoms); (Tr. 1443, 1447) (noting worse mild-moderate symptoms).
The note indicating that Mr. Scott hears voices telling him to “kill people” was recorded on
February 28, 2011. See (Tr. 1419). Less than one month later, on March 22, 2011, Dr. Gill
noted in a progress report that “things are starting to get better,” (Tr. 1439), and Dr. Gill
described Mr. Scott’s status as “improved.” Id. While this Court cannot speculate as to the

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Appeals Council’s precise reasons for denying review, the record supports a finding that the
Appeals Council complied with its duty.
Third, I find that the ALJ’s opinion as a whole was supported by substantial evidence.
Mr. Scott argues that the ALJ’s mental assessment and RFC assessment lacked “the required
detailed findings” and that the ALJ made “conclusory” statements. Pl.’s Mot. 17. I disagree. As
discussed above, the ALJ’s opinion relied on substantial evidence in the record. The ALJ
pointed to medical evidence, lay evidence, and to Mr. Scott’s own complaints. The analysis was
adequately supported by the medical evidence and does not warrant remand.
Finally, Mr. Scott argues that the ALJ erred by denying outright his request for an inperson hearing. Pl.’s Mot. 18-19. If a claimant objects to the time and place of a hearing, the
claimant must notify the agency “at the earliest possible opportunity before the time set for the
hearing.” 20 C.F.R. §§ 404.936(d); 416.1436(d). The claimant must state the reason for the
objection and must propose a substitute time and place for the hearing to be held. Id. The ALJ
will grant the request upon a finding of “good cause.” Id. A finding of good cause is warranted
where the claimant or the claimant’s representative cannot attend the hearing because of severe
weather conditions, or “because of a serious physical condition, mental condition, incapacitating
injury, or death in the family.” 20 C.F.R. §§ 404.936(e)(1)-(2); 416.936(e)(1)-(2). The ALJ may
also determine whether good cause exists in other circumstances. 20 C.F.R. §§ 404.936(f);
404.936(f). Other circumstances might include those where a claimant’s representative was
appointed within 30 days of the scheduled hearing and the representative needs additional time to
prepare. Id.
I find no error with the ALJ’s denial of an in-person hearing. Mr. Scott requested a
postponement and an in-person hearing at the start of his October 12, 2011 hearing, which was

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conducted by video.2 (Tr. 48). The judge denied the request stating, “[h]e never requested it. He
agreed to the hearing. We’re prepared to go forward today.” Id. It is evident that the ALJ found
good cause lacking because Mr. Scott did not object to the hearing earlier. Mr. Scott suggests
that because he met his attorney for the first time at the morning of the hearing, he was unaware
of his right to request an in-person hearing sooner. Pl.’s Mot. 18. However, Mr. Scott was
represented by counsel at the time he received notice of the hearing. See (Tr. 201-02) (letter to
Ronald D. Miller of the Disability Group, Inc. confirming Mr. Scott’s request for a hearing and
explaining the hearing process); (Tr. 215-20) (Notice of Hearing copied to Ronald D. Miller of
the Disability Group, Inc.); (Tr. 235-38) (Amended Notice of Hearing copied to Ronald D.
Miller of the Disability Group, Inc.). Furthermore, on August 30, 2011, Mr. Scott accepted the
time and place of the hearing by signing a formal “Acknowledgement of Receipt (Notice of
Hearing).” (Tr. 248). Notably, Mr. Scott failed to check the box on the form that stated “I do
not want to appear at my hearing by video teleconference. Please reschedule my hearing so that I
may appear in person.” Id. Although I take Mr. Scott at his word that he did not speak with his
new attorney until the morning of the hearing, I cannot accept that he was unaware of his right to
an in-person hearing at any time prior. The record clearly demonstrates that he was represented
by counsel when he received hearing notices, and that he agreed to the time and place of his
hearing, despite having the opportunity to object.
The record also fails to support a finding of good cause on the basis that Mr. Scott’s
counsel was appointed within 30 days of the scheduled hearing and needed additional time to
prepare. Ronald D. Miller terminated his representation of Mr. Scott on September 2, 2011, and
Ms. Levian entered her appearance on the day of the hearing, October 12, 2011. (Tr. 47, 247). It

2

The ALJ and the vocational expert appeared in Dover, Delaware, while Mr. Scott and his representative were at the
Hagerstown, Maryland hearing office. See (Tr. 47).

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appears from the transcript that Ms. Levian was well prepared for the hearing. She raised
objections to specific exhibits, delivered an opening statement, amended Mr. Scott’s onset date,
and examined Mr. Scott and the VE. See (Tr. 48-106). Mr. Scott does not contend, nor do I
find, that his representative was in any way unprepared for the hearing and would have benefited
from a rescheduled in-person hearing.
Finally, Mr. Scott contends that the video hearing did not allow for a proper assessment
of his demeanor. See Pl.’s Mot. 18-19. He states that “video conferences do not allow for a
claimant’s credibility, mental functioning, or pain levels to be accurately reflected or observed.”
Pl.’s Mot. 18. This is of particular importance in this case, he contends, because the ALJ’s
credibility analysis was impermissibly informed by “her observations of his alleged inability to
concentrate.” Id. at 18. Mr. Scott relies on Jenkins v. Sullivan, 906 F.2d 107 (4th Cir. 1990), to
argue that an ALJ is not permitted to make credibility determinations based solely on the ALJ’s
own observations at a hearing. Id. at 19. In Jenkins, the Fourth Circuit condemned the use of
“sit and squirm jurisprudence,” stating that the ALJ is not qualified to make determinations
regarding pain or discomfort by mere observation of the claimant. Jenkins, 906 F.2d at 108.
Here, Mr. Scott seizes on the ALJ’s statement that, “[a]lthough [Mr. Scott] claims memory and
concentration problems during the hearing, his memory and concentration were more than
adequate during the hearing.” (Tr. 24). The ALJ’s overall credibility analysis, however, was
several paragraphs long and relied on specific evidence in the record, including Mr. Scott’s
medical diagnoses, treatment history, and self-reported complaints. See (Tr. 23-24). Moreover,
despite finding Mr. Scott’s alleged memory and concentration problems not credible, the ALJ
still included a restriction in the RFC assessment that limited Mr. Scott to simple work, not at a
production pace.

See (Tr. 23). The ALJ’s credibility analysis was supported by substantial

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evidence and does not warrant remand.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court GRANT Defendant’s Motion for Summary Judgment, (ECF No. 15); and
2. the Court DENY Plaintiff’s Motion for Summary Judgment, (ECF No. 13); 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: April 2, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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