Faulders v. Colvin

Filing 17

LETTER OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 1/7/2014. (aos, 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]

January 7, 2014
LETTER TO COUNSEL:
RE:

Kathy Diane Faulders v. Commissioner, Social Security Administration;
Civil No. SAG-13-1148

Dear Counsel:

On April 19, 2013, the Plaintiff, Kathy Diane Faulders, petitioned this Court to review
the Social Security Administration’s final decision to deny her claims for Disability Insurance
Benefits and Supplemental Security Income (“SSI”). (ECF No. 1). I have considered the
parties’ cross-motions for summary judgment. (ECF Nos. 14, 16). 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U.S.C. §§ 405(g), 1383(c)(3); see Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (superseded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. Faulders filed her claims for Disability Insurance Benefits and SSI on July 7, 2009,
and July 8, 2009, respectively. (Tr. 137–46). She alleged disability beginning on May 28, 2009.
Id. Her claim was denied initially on January 31, 2010, and upon reconsideration on August 19,
2010. (Tr. 67, 76-78). A hearing was held on October 31, 2011 before an Administrative Law
Judge (“ALJ”). (Tr. 30-54). Following the hearing, the ALJ determined that Ms. Faulders was
not disabled during the relevant time frame. (Tr. 17-25). The Appeals Council denied Ms.
Faulders’s request for review, (Tr. 1-5), so the ALJ’s decision constitutes the final, reviewable
decision of the agency.
The ALJ found that Ms. Faulders suffered from the severe impairments of panic disorder,
impulse control disorder, bipolar disorder, personality disorder, hypertension, hyperthyroidism,
and morbid obesity. (Tr. 19). Despite these impairments, the ALJ determined that Ms. Faulders
retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she
can do no more than occasional climbing of ramps and stairs; she can never climb
ladders, ropes and scaffolds; she can do no more than occasional balancing,
stooping, kneeling, crouching and crawling; she must avoid concentrated
exposure to extreme heat, hazardous moving machinery, and unprotected heights.
She is limited to simple, routine and repetitive tasks in a low stress environment,
with no strict production quotas, and no more than occasional, superficial
interaction the public, coworkers, and supervisors.
(Tr. 21). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Faulders could perform jobs that exist in significant numbers in the national economy, and
that she was therefore not disabled during the relevant time frame. (Tr. 24).

Kathy Diane Faulders v. Commissioner, Social Security Administration
Civil No. SAG-13-1148
January 7, 2014
Page 2
Ms. Faulders presents several arguments on appeal. First, she argues that the ALJ did not
properly evaluate her panic disorder with agoraphobia at Step Two, or elsewhere in the
sequential analysis. Second, she argues that the ALJ failed to give sufficient weight to the
opinions of her treating and consulting physicians. Third, she contends that the ALJ failed to
conclude that she met or equaled Listing 12.04 or 12.06. Fourth, Ms. Faulders broadly
challenges the ALJ’s RFC assessment and credibility evaluation. Fifth, she argues that the ALJ
failed to include all of her limitations in the hypothetical with the VE. Finally, Ms. Faulders
argues that her case merits remand to the agency because the Appeals Council failed to analyze
additional evidence regarding her mental state. Each argument lacks merit, and is addressed in
turn.
Ms. Faulders argues that the ALJ should have deemed her agoraphobia severe at Step
Two of the sequential analysis. At Step Two, the ALJ must determine whether the claimant has
a severe impairment. See 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(a)(4)(ii). An
impairment is considered “severe” if it significantly limits the claimant's ability to work. See 20
C.F.R. § 404.1521(a); 20 CFR § 416.920(c). The claimant bears the burden of proving that his
impairment is severe. Johnson v. Astrue, Civil Action No. PWG–10–3139, 2012 WL 203397, at
*2 (D. Md. Jan. 23, 2012) (citing Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995)). Ms.
Faulders’s medical evidence of record shows diagnoses of panic disorder with agoraphobia. See
(Tr. 339-42, 344-45, 367-69, 371, 385, 420, 510, 518, 522, 524). However, the ALJ deemed
“panic disorder” to be a severe impairment. (Tr. 19). Ms. Faulders does not cite to any
functional limitations inherent in agoraphobia that the ALJ did not already expressly consider in
connection with Ms. Faulders’s panic disorder and other severe impairments. Moreover, any
error would be harmless because the ALJ appropriately considered agoraphobia as a non-severe
impairment at the later stages of the sequential analysis. In the RFC assessment, the ALJ
specifically noted that Ms. Faulders claimed to experience “depression, agoraphobia, and severe
mood swings.” (Tr. 21). The resulting RFC significantly limited Ms. Faulders’s interaction with
the public, co-workers, and supervisors. Therefore, remand is not required to address the ALJ’s
Step Two findings.
Ms. Faulders next argues that the ALJ failed to appropriately weigh the opinions of her
treating and consulting physicians. Pl.’s Mot. 7-8. Ms. Faulders provides no explanation as to
the alleged deficiency in the ALJ’s analysis. In reviewing Ms. Faulders’s medical evidence of
record, and the ALJ’s analysis, I find that the ALJ’s assignment of weight is supported by
substantial evidence. The two opinions that the ALJ accorded substantial weight were both
supported by the record. Dr. Wessel’s mental RFC assessment noted no marked limitations in
any areas, and concluded that Ms. Faulders “appears compatible with work related functions and
activities.” (Tr. 425-27). Dr. Miller’s GAF assessment of 55-59 was also given substantial
weight, as it too was consistent with the record. Specifically, the GAF score was consistent with
Ms. Faulders’s activities of daily living report, which noted that Ms. Faulders can perform basic
activities, such as driving, housework, and limited cooking. (Tr. 23). The ALJ accorded only
moderate weight to Dr. Wessel’s Psychiatric Review Technique, because there is no evidence in
the record showing a psychiatric hospitalization of more than two weeks. Id. Finally, the ALJ
gave only minimal weight to a March 20, 2009 opinion of Dr. Wagner, Ms. Faulder’s treating
psychiatrist, because Dr. Wagner’s opinion dated back to a period of prior adjudication by an
ALJ. Id.

Kathy Diane Faulders v. Commissioner, Social Security Administration
Civil No. SAG-13-1148
January 7, 2014
Page 3
Ms. Faulders also contends that the ALJ erred by failing to conclude that she met Listings
12.04 or 12.06, or both. Ms. Faulders has failed to satisfy her burden of demonstrating that her
impairment meets or equals all of the requirements of a Listing. Kellough v. Heckler, 785 F.2d
1147, 1152 (4th Cir. 1986); Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Listing 12.04 governs
affective disorders, which are “characterized by a disturbance of mood, accompanied by a full or
partial manic or depressive syndrome.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.04.
Listing 12.06 refers to anxiety related disorders where the anxiety is “either the predominant
disturbance or it is experienced if the individual attempts to master symptoms.” 20 C.F.R. Part
404, Subpart P, Appendix 1, § 12.06. Both Listings require the claimant to satisfy the
“paragraph A” and “paragraph B” criteria, or in the alternative, the “paragraph C” criteria. The
ALJ compared Ms. Faulders’s impairments with the requirements of Listings 12.04, 12.06, and
12.08, and concluded that neither the criteria in “paragraph B,” nor the criteria in “paragraph C,”
were met. (Tr. 20).
The “paragraph B” criteria require the claimant to demonstrate that her impairment
results in at least two of the following: (1) marked restrictions of daily living; or (2) marked
difficulties in maintaining social functioning; or (3) marked difficulties in maintaining
concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of
extended duration. (Tr. 20). The ALJ concluded, and I agree, that Ms. Faulders’s impairments
fall short of the “paragraph B” criteria. Ms. Faulders has only slight restrictions of daily living,
as she testified at her hearing that she drives approximately two to three times a week, visits her
grandmother, cleans occasionally, and took care of her boyfriend after he suffered a heart attack.
(Tr. 35-37). The ALJ also concluded that Ms. Faulders had “moderate” difficulties in social
functioning, and maintaining concentration, persistence, or pace. (Tr. 20). Several mental status
assessments show that Ms. Faulders had coherent thoughts and calm moods. See (Tr. 339, 341,
345, 395, 487, 510). With respect to concentration, the ALJ stated that, “[t]reating physicians
largely noted normal memory and concentration…” (Tr. 20). The treatment notes of Dr.
Wagner, Ms. Faulders’s treating psychiatrist, do not mention Ms. Faulders’s memory at all. See
(Tr. 391-418). However, notes following an examination by Dr. Rao, a family physician,
described Ms. Faulders’s psychiatric state as “intact, recent and remote memory. Mood and
affect are normal.” (Tr. 470). There is no evidence in the record to support a finding that Ms.
Faulders suffered from repeated episodes of decompensation, each of an extended duration. Ms.
Faulders also fails to cite to any evidence suggesting that her impairments might satisfy the
“paragraph C” criteria of Listing 12.04, which require a showing of a chronic affective disorder,
including repeated episodes of decompensation, or a risk of decompensation upon a minimal
increase in mental demands, or an inability to function outside a highly supportive living
arrangement. Similarly, Ms. Faulders fails to satisfy the “paragraph C” criteria of Listing 12.06,
which require a claimant to show that her impairment results in a complete inability to function
independently outside the area of his or her home. 20 C.F.R. Part 404, Subpart P, Appendix 1,§
12.06C.
Ms. Faulders next argues that the ALJ’s RFC assessment was inadequate because the
ALJ did not properly evaluate her mental impairments. Pl’s Mot. 9-12. However, as discussed
above, the ALJ discussed Ms. Faulders’s mental impairments at Steps Two and Three of the
sequential analysis. Moreover, the ALJ’s discussion of the RFC determination included a
detailed analysis of Ms. Faulders’s ability to perform work-functions. (Tr. 21-22). I find that the

Kathy Diane Faulders v. Commissioner, Social Security Administration
Civil No. SAG-13-1148
January 7, 2014
Page 4
ALJ’s discussion provided a sufficient basis to understand his reasoning, and that his opinion is
supported by substantial evidence. The RFC determination, therefore, provides no basis for
remand.
I also find that the ALJ did not fail to evaluate Ms. Faulders’s subjective complaints. In
accordance with the requirements of 20 C.F.R. §§ 404.1529(b) and 416.929(b), the ALJ followed
the two-step process for evaluating a claimant’s subjective complaints. (Tr. 21-22). First, there
must be objective medical evidence of a medical impairment reasonably likely to cause the
symptoms alleged by the claimant. Chater, 76 F.3d at 594. After the claimant meets this
threshold obligation, the ALJ must evaluate “the intensity and persistence of the claimant's
[symptoms], and the extent to which it affects her ability to work.” Id. at 595. The ALJ
determined that Ms. Faulders’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms.” (Tr. 22). However, the ALJ did not find Ms.
Faulders’s statements as to the intensity, persistence, and limiting effects of her symptoms to be
fully credible. Id. In the ALJ’s credibility analysis, he noted that Ms. Faulders claimed to have
poor impulse control, panic attacks, and trouble sleeping. (Tr. 22). Yet, evidence in her medical
record contradicted the severity of her claims. Id. In a Consultative Examination Report, Dr.
Miller noted that Ms. Faulders “tended to present as overdramatic.” (Tr. 419). Other evidence
that the ALJ highlighted demonstrated that Ms. Faulders’s mental condition improved at times,
and was even described as “fairly stable” by her treating psychiatrist. See (Tr. 484, 488, 510). I
find that the analysis provided by the ALJ included substantial evidence to support his credibility
determination.
Ms. Faulders argues that the ALJ’s hypothetical to the VE did not include all of her
limitations. Pl.’s Mot. 8-9. Ms. Faulders contends that “each and every symptom must be
included in a question to the VE.” Id. at 8. 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, 807 F.2d 771, 774 (9th
Cir. 1986)). The ALJ’s hypothetical was largely based on the RFC, which included limitations
that accommodated Ms. Faulders’s physical and mental disorders. See (Tr. 50-52). Given that I
find that the ALJ’s RFC assessment is supported by substantial evidence, I similarly find that the
hypothetical posed by the ALJ is supported by substantial evidence.
Ms. Faulders also contends that the agency failed to consider additional evidence related
to her mental disorders. As a result, she argues that the ALJ erroneously assessed her RFC. Ms.
Faulders submitted additional evidence to the Appeals Council on February 20, 2012. The
evidence included a “Medical Assessment of Ability to do Work-Related Activities,” and
responses to a set of interrogatories, both completed by Dr. Wagner. (Tr. 519-532). In its
decision denying review, the Appeals Council stated that it considered the additional evidence,
but found that there was no basis for changing the ALJ’s decision. (Tr. 1-2). The Appeals
Council must review additional evidence if it is “(a) new, (b) material, and (c) relates to the
period on or before the date of the ALJ's decision.” Wilkins v. Sec'y, Dept. of Health & Human
Servs., 953 F.2d 93, 95–96 (4th Cir. 1991); see 20 C.F.R. § 404.970(b). Evidence is “new” if “it
is not duplicative or cumulative.” Wilkins, 953 F.2d at 96. “Evidence is material if there is a
reasonable possibility that the new evidence would have changed the outcome.” Id. “[T]he

Kathy Diane Faulders v. Commissioner, Social Security Administration
Civil No. SAG-13-1148
January 7, 2014
Page 5
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). 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. Because the record clearly demonstrates the Appeals
Council's receipt and consideration of the 2012 information from Dr. Wagner, (Tr. 1-4), I cannot
conclude that the Appeals Council discharged its duties improperly.
Moreover, Dr. Wagner’s 2012 opinions are nearly identical to the previous medical
assessment that Dr. Wagner completed on March 20, 2009. (Tr. 496-505, 515-32). Both sets of
interrogatories discussed the severity of Ms. Faulders’s mental disorders, and opined that Ms.
Faulders was “unable to cook, clean, shop or pay bills” (Tr. 500, 527), and that Ms. Faulders
“cannot accomplish routine tasks without assistance from the family.” (Tr. 502, 529). Even if
the 2012 forms were viewed as “new” because the ALJ did not substantively consider the earlier
forms (Tr. 23), in light of the ALJ’s opinion as a whole, there is no reasonable possibility that the
evidence would be “material” or that the outcome would have changed. The ALJ’s opinion
included a comprehensive review of Dr. Wagner’s treatment notes, most of which “indicated that
the claimant’s mood was normal with good judgment and insight.” (Tr. 23). In light of the ALJ’s
review of the treatment notes and the significant RFC restrictions relating to mental health, the
2012 evidence from Dr. Wagner would not be material to the ALJ’s determination.
For the reasons set forth herein, Plaintiff’s motion for summary judgment (ECF No. 14)
will be DENIED and the Commissioner’s motion for summary judgment (EDC No. 16) 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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