Gaskins v. Colvin

Filing 18

REPORT AND RECOMMENDATIONS re 15 MOTION for Summary Judgment filed by Joyce Gaskins, 17 MOTION for Summary Judgment filed by Carolyn Colvin. Signed by Magistrate Judge Stephanie A Gallagher on 3/12/14. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JOYCE GASKINS

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v.
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Civil Case No. WDQ-13-1470
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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. 15, 17. 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 Ms.
Gaskins’s motion be denied.
Ms. Gaskins applied for Supplemental Security Income on July 29, 2010, originally
alleging a disability onset date of February 15, 2009.1 (Tr. 122-25). Her claim was denied
initially on December 28, 2010, and on reconsideration on April 21, 2011. (Tr. 57-60, 64-65).
An Administrative Law Judge (“ALJ”) held a hearing on May 24, 2012, (Tr. 25-46), and
subsequently denied benefits to Ms. Gaskins in a written opinion, (Tr. 8-24).

The Appeals

Council declined review, (Tr. 1-6), making the ALJ’s decision the final, reviewable decision of
the agency.

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She subsequently amended her onset date to August 14, 2010. (Tr. 136-37).

The ALJ found that Ms. Gaskins suffered from the severe impairments of “bipolar
disorder; etoh abuse; and history of drug abuse.” (Tr. 13).

However, the ALJ determined that

Ms. Gaskins retained the residual functional capacity (“RFC”) to
perform medium work as defined in 20 CFR 416.967(c) except Claimant is
limited to simple, routine, repetitive work with no contact with crowds and very
rare/significantly less than occasional contact with public.
(Tr. 16). After considering testimony from a vocational expert (“VE”), the ALJ determined that
Ms. Gaskins could perform work existing in significant numbers in the national economy, and
that she was not therefore disabled. (Tr. 19-20).
Ms. Gaskins disagrees. She asserts several arguments in support of her appeal: (1) that
the ALJ’s mental RFC assessment lacked sufficient specificity; (2) that the ALJ assigned
insufficient weight to the opinion of her treating psychiatrist, Dr. Javaid; (3) that the ALJ failed
to account for moderate limitations found by the state agency physician, Dr. Breslin; (4) that the
ALJ’s hypothetical to the VE was inadequate; (5) that the Commissioner failed to consider new
and material evidence from Drs. DeBlosi and Woreta; and (6) that the ALJ failed to consider
adequately the effect of her other impairments such as hypertension, polyneuropathy, obesity,
and joint pain. Each argument lacks merit.
Ms. Gaskins’s first argument relates to the specificity of her mental RFC assessment. Pl.
Mot. 19-21. The RFC assessment specifies that Ms. Gaskins is limited to “simple, routine,
repetitive work” (which addresses her limitations in concentration, persistence, and pace) and to
“work with no contact with crowds and very rare/significantly less than occasional contact with
public” (which addresses her limitations in social functioning). (Tr. 16). Although Ms. Gaskins
clearly believes that additional limitations were warranted, I find no inherent deficiency in the
wording of the RFC assessment as stated by the ALJ.2 Moreover, as discussed in more detail

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Ms. Gaskins argues that SSR 96-8p requires the mental RFC assessment contain detail addressing the

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below, I find the RFC assessment itself to be supported by substantial evidence, and therefore
recommend that it be affirmed.
Next, Ms. Gaskins argues that the ALJ erred by assigning too little weight to the opinions
of her treating psychiatrist, Dr. M. H. Javaid.3 Pl. Mot. 21-22, 28-33. 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, 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. Javaid’s form indicated “marked restrictions” in all areas, including “activities of daily
living.” (Tr. 18). The ALJ correctly points out that the evidence of record reflects that Ms.
Gaskins is highly independent in her activities of daily living, and cares for her minor son. Id.
Moreover, the ALJ also notes that the treatment notes from Bon Secours reflect that Ms.
Gaskins’s conditions are relatively well-controlled when she is compliant with her medications.
See, e.g., (Tr. 228, 288, 343, 345). The ALJ appropriately considered that discrepancy between

claimant’s ability to understand, carry out, and remember instructions; use judgment in making workrelated decisions; respond appropriately to supervision, co-workers, and work situations; and deal with
changes in a routine work setting. Pl. Mot. 19-20. In fact, SSR 96-8p lists those activities in a nonexhaustive list of examples of mental activities “generally” required in competitive work settings. SSR
96-8p, 1996 WL 374184, at *6 (July 2, 1996).
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Although Ms. Gaskins refers to Dr. Javaid as a “treating psychiatrist,” and many of the signatures are
somewhat unclear, none of the treatment notes from Bon Secours appear to have been signed by Dr.
Javaid. Moreover, even Dr. Javaid’s “opinion” is filled out almost entirely in handwriting that is not at all
consistent with Dr. Javaid’s, and the form says “Dr. Sue” at the top. (Tr. 371). “Dr. Sue” appears to refer
to Susan Ouellette, who is a CRNP and not a medical doctor. Ms. Ouellette’s signature appears on
several treatment notes for Ms. Gaskins. See, e.g., (Tr. 289, 293).

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the treatment notes and Dr. Javaid’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
other physicians’ and his own treatment 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.”). Finally, the ALJ cited the opinions of the two State Agency
psychological consultants, Drs. D. Peterson and Francis Breslin, who reviewed the treatment
notes from Bon Secours. (Tr. 251-67, 303-15). Each of those doctors found only mild or
moderate restriction in activities of daily living; moderate difficulties in social functioning and in
concentration, persistence, or pace; and the residual functional capacity to perform work. Id. In
light of the substantial evidence of record that is inconsistent with Dr. Javaid’s opinion, the
ALJ’s assignment of little weight to that opinion is justified.
Next, Ms. Gaskins argues that the ALJ failed to properly evaluate her mental impairment.
Pl. Mot. 22-25. Specifically, she contends that the ALJ disregarded Dr. Francis Breslin’s
perceived limitations regarding her mental status.

Ms. Gaskins is correct that Dr. Breslin, in

Section I of his opinion, checked the box indicating that Ms. Gaskins was “moderately limited”
in eleven different areas, (Tr. 317-18). However, the relevant portion of a physician’s opinion is
not Section I, which sets forth a series of “check the box” rankings, but Section III, which
provides a narrative functional capacity assessment. See Program Operations Manual System DI
24510.060B (Mental Residual Functional Capacity Assessment), available at https://
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secure.ssa.gov/apps10/poms.nsf/lnx/0424510060 (“Section I is merely a worksheet to aid in
deciding the presence and degree of functional limitations and the adequacy of documentation
and does not constitute the RFC assessment.”). Because Section I does not include the requisite
level of detail to inform the ALJ’s opinion, an ALJ need not address each of the Section I
limitations. See, e.g., Andrews v. Astrue, Civil No. SKG–09–3061, slip op. at *39 (D. Md. Oct.
25, 2011) (noting that “even if the ALJ had not explicitly addressed each of the mental function
limitations appearing on Section I of the mental RFCA, he was not required to do so.”).
Moreover, the ALJ adequately addressed the limitations found in Dr. Breslin’s Section III
functional capacity assessment. The ALJ limited Ms. Gaskins to “simple, routine, repetitive work
with no contact with crowds and very rare/significantly less than occasional contact with public,”
(Tr. 16), which is consistent with Dr. Breslin’s Section III conclusions that Ms. Gaskins “can
understand, remember, and follow simple 1-2 step instructions,” “can work an 8-hour day using
all customary breaks and rest periods,” and “[t]here should be no intensive interaction with the
public and only casual contact with peers.” (Tr. 319).
Ms. Gaskins further argues that the ALJ’s hypothetical to the VE did not include all of
the necessary mental health limitations. Pl. Mot. 25-27. 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)). Essentially, Ms. Gaskins posits that the hypothetical, which was premised on the
RFC assessment, was deficient because the RFC assessment was deficient. As discussed above,
the ALJ provided substantial evidence to support the restrictions included in the RFC
assessment. Accordingly, the hypothetical was sufficient.
Next, Ms. Gaskins contends that the Appeals Council should have assigned significant
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weight to two “new and material” opinions: (1) the opinion of Dr. DeBlasi from the Bon Secours
Baltimore Health System, (Tr. 381-83) and (2) the physical RFC assessment from Ms. Gaskins’s
treating physician, Dr. Ambachew Woreta, (Tr. 374-76). Neither opinion was submitted to the
ALJ, but both opinions pertain to the period prior to the ALJ’s opinion. The Appeals Council
considered both opinions, but did not articulate any factual findings regarding those opinions in
determining that the opinions did not justify remand. (Tr. 1-4). Under Meyer v. Astrue, 662 F.3d
700, 705-06 (4th Cir. 2011), the Appeals Council need not articulate its findings as long as the
Court can assess, from a review of the entire record, the basis for the Commissioner’s decision.
Although Ms. Gaskins contends that the two physicians’ opinions should be treated as
“new and material evidence,” the opinion from Dr. DeBlasi does not qualify as “new.” Evidence
is “new” only if “it is not duplicative or cumulative.” Wilkins v. Sec'y, Dept. of Health & Human
Servs., 953 F.2d 93, 96 (4th Cir. 1991). Dr. DeBlasi’s opinion is extremely similar to the opinion
issued by Dr. Javaid, who also works at the Bon Secours Baltimore Health System. Compare
(Tr. 380) (opinion signed by Dr. DeBlasi but captioned “Dr. Sue”) with (Tr. 371-73) (opinion
signed by Dr. Javaid but also captioned “Dr. Sue”). In fact, the two opinions repeat the same
language nearly verbatim and appear to be in the same handwriting. As noted above, the treating
records from Bon Secours are almost all signed by non-physicians, and there is no indication that
Dr. DeBlasi had any more contact with Ms. Gaskins than Dr. Javaid had during her Bon Secours
appointments. Moreover, the ALJ’s analysis of Dr. Javaid’s report is equally applicable to Dr.
DeBlasi’s. Because the two reports can only be described as duplicative and cumulative, Dr.
DeBlasi’s report does not constitute new evidence.
Although Dr. Woreta’s report qualifies as “new,” new evidence is only “material” where
there is “a reasonable possibility that the new evidence would have changed the outcome.”
Meyer v. Astrue, 662 F.3d at 705 (citing Wilkins, 953 F.2d at 96).
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Dr. Woreta premises her

conclusion of disability on allegations of disabling joint pain that simply is not reflected in Ms.
Gaskins’s medical records. The records show that Ms. Gaskins had only three appointments
with Dr. Woreta over nineteen months (despite recommendations that she be seen much more
frequently). At those appointments, Ms. Gaskins demonstrated “no localized joint swelling,”
normal gait and stance, normal sensation, and normal motor function. (Tr. 326-27, 330, 333).
The only contrary finding, which was not explained, was “abnormal movement of all
extremities,” and that finding was made also during a 2010 visit in which Ms. Gaskins made no
complaints of joint pain and was not diagnosed with any joint-related impairments. (Tr. 326,
330). Moreover, the opinion by Dr. Woreta is contrary to the thorough consultative examination
performed by Dr. Cohen, on which the ALJ relied. See (Tr. 272) (finding range of motion
“essentially normal”). Although Ms. Gaskins posits that Dr. Cohen was only asked to evaluate
her for a broken leg and mental health impairments, it is clear that Dr. Cohen’s assessment
included a full physical examination. See (Tr. 270-72) (Dr. Cohen report finding “specific range
of motion of all joints including the spine is normal”, “shows ambulation to be normal,” “no
evidence of inflammatory arthritis,” “no restriction in range of motion of the spine or major
joints,” and “there is no joint abnormality.”). In light of the substantial evidence supporting the
ALJ’s conclusion, and the inconsistency with Dr. Woreta’s own treatment notes, there is no
reasonable possibility that Dr. Woreta’s report would have altered the ALJ’s determination.
Finally, Ms. Gaskins argues that the ALJ failed to consider the severity of her
hypertension, polyneuropathy, obesity, and joint pain at Step Two of the sequential evaluation.
Pl. Mot. 36-38. An impairment is considered “severe” if it significantly limits the claimant’s
ability to work. See 20 C.F.R. § 404.1521(a). The claimant bears the burden of proving that her
impairment is severe. Johnson v. Astrue, 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. Gaskins asserts
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that the ALJ’s determination that she is capable of only medium (and not heavy or very heavy)
work implies that the ALJ must have credited some severe physical impairments. Pl. Mot. 36.
Even if Ms. Gaskins were actually capable of higher levels of exertion, the ALJ’s restriction to
medium work would be harmless error, because she would be able to perform medium work in
addition to work requiring greater exertion. Moreover, Ms. Gaskins’s only support for her
physical impairments is the opinion from Dr. Woreta which, as discussed above, was unavailable
to the ALJ. On the record presented to the ALJ, there is no evidence to support any severe
physical impairments, as the ALJ concluded during the Step Two analysis in finding that her
physical “examination results have been within normal limits.” (Tr. 13). Moreover, even if I
were to find that the ALJ erred in her evaluation of any of Ms. Gaskins’s physical impairments at
Step Two, such error would be harmless. Because Ms. Gaskins made the threshold showing that
other disorders constituted severe impairments, the ALJ continued with the sequential evaluation
process and considered all of the impairments, both severe and nonsevere, that significantly
impacted Ms. Gaskins’s ability to work. See 20 C.F.R. § 404.1523. The ALJ considered Ms.
Gaskins’s physical condition, particularly the assessments of the State Agency physicians and
the consultative examination report from Dr. Cohen, in her RFC analysis before concluding that
Ms. Gaskins was capable of medium work. (Tr. 18).

CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court GRANT Defendant’s Motion for Summary Judgment (ECF No. 17); and
2. the Court DENY Plaintiff’s Motion for Summary Judgment (ECF No. 15) and CLOSE
this case.

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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: March 12, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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