Mazan v. Colvin

Filing 23

REPORT AND RECOMMENDATIONS. Signed by: Judge Magistrate Judge Stephanie A Gallagher. Signed by Magistrate Judge Stephanie A Gallagher on 5/8/14. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NANCY MAZAN

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v.
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Civil Case No. CCB-13-1831
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COMMISSIONER, SOCIAL SECURITY
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, 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. 18, 22. 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.
Mazan’s motion be denied.
Ms. Mazan applied for Disability Insurance Benefits and Supplemental Security Income
on April 8, 2009, alleging a disability onset date of April 1, 2008. (Tr. 146-53). She later
amended her onset date to the date of filing. (Tr. 165). Her claims were denied initially on
August 25, 2009, and on reconsideration on July 9, 2010. (Tr. 86-89, 91-92). An Administrative
Law Judge (“ALJ”) held a hearing on August 5, 2011, (Tr. 27-83), and subsequently denied
benefits to Ms. Mazan in a written opinion, (Tr. 9-26). The Appeals Council declined review,
(Tr. 1-5), making the ALJ’s decision the final, reviewable decision of the agency.
The ALJ found that Ms. Mazan suffered from the severe impairments of “degenerative
disc disease of the lumbar spine status post-fusion L4-S1 in March 2008, obesity (5’1”, 170

pounds, BMI 32), arthritis in the right knee from January 2010, learning disorder, and
depression.” (Tr. 11). However, the ALJ determined that Ms. Mazan retained the residual
functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a), except the claimant
can occasionally use foot controls; can occasionally climb ramps or stairs (never
ladders, ropes or scaffolds), balance, stoop, kneel, crouch and crawl; must avoid
concentrated exposure to workplace hazards; can carry out simple tasks in 2-hour
increments (which can be accommodated by regularly scheduled breaks); and can
adapt to simple changes in a routine work setting.
(Tr. 14). After considering testimony from a vocational expert (“VE”), the ALJ determined that
Ms. Mazan could perform work existing in significant numbers in the national economy, and that
she was not therefore disabled. (Tr. 19-20).
Ms. Mazan disagrees. She asserts several arguments in support of her appeal: (1) that
the ALJ provided an inadequate mental RFC assessment; (2) that the ALJ erred in evaluating
Listing 12.05C; (3) that the ALJ assigned insufficient weight to the opinions of four treating
sources; (4) that the ALJ should have found her arthritic changes in her cervical spine to be
severe; and (5) that the ALJ’s hypothetical question to the VE was inadequate. Each argument
lacks merit.
Ms. Mazan’s first argument relates to the adequacy of the mental RFC assessment
determined by the ALJ. Pl. Mot. 22-24. Ms. Mazan asserts that the mental RFC assessment
lacked sufficient detail about particular functions.

In making that argument, however, Ms.

Mazan focuses exclusively on the bolded language of the RFC assessment set forth in the
opinion heading. Pl. Mot. 22. In fact, the ALJ’s analysis considered Ms. Mazan’s activities of
daily living, social functioning, concentration persistence, or pace, prior ability to work a job,
educational records, and psychiatric records and evaluations.

(Tr. 12-19).

In light of the

evidence considered by the ALJ regarding Ms. Mazan’s functional capacities, remand is
unwarranted. Ms. Mazan further contends that the ALJ failed to evaluate Dr. Ansel’s
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psychological evaluation. Pl. Mot. 24. While the ALJ’s detailed discussion of Dr. Ansel’s
psychological evaluation occurred in the Step Three section of the ALJ’s opinion, rather than the
Step Four section, there is no requirement that the same analysis be reiterated repeatedly within a
single opinion. It is clear that the ALJ adequately considered Dr. Ansel’s opinion in reaching a
conclusion about Ms. Mazan’s RFC.
Ms. Mazan’s next argument is that she should have been found to meet the criteria of
Listing 12.05C. Pl. Mot. 24-25. Listing 12.05 governs intellectual disability, which refers to
“significantly subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the evidence demonstrates or supports
onset of the impairment before age 22.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. Sub-section
C requires a showing of two distinct prongs. First, the claimant must demonstrate “[a] valid
verbal, performance, or full scale IQ of 60 through 70.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.05. Second, the claimant must have “a physical or other mental impairment imposing an
additional and significant work-related limitation of function.” Id. In testing with Dr. Ansel, Ms.
Mazan was assigned a verbal and full scale IQ of 70. (Tr. 385-87). However, the ALJ assigned
little weight to Dr. Ansel’s IQ score and opinion, noting that Dr. Ansel had been erroneously
informed that Ms. Mazan had special education in school, when in fact she was in a regular
education program, that Ms. Mazan provided contradictory information regarding whether she or
her daughter completed her function report and work report, that Ms. Mazan successfully worked
part-time for many years, that Ms. Mazan effectively used public transportation to travel through
the community, and that Dr. Ansel failed to provide an explanation or analysis for his
conclusions. (Tr. 14). An ALJ “has the discretion to assess the validity of an IQ test result and
is not required to accept it even if it is the only such result in the record.” Hancock v. Astrue, 667
F.3d 470, 474 (4th Cir. 2012). The ALJ is permitted to rely on the inconsistencies between the
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IQ result and the claimant’s actual functioning. Id. Because the ALJ did just that, the ALJ did
not err in failing to credit Dr. Ansel’s score, which could trigger application of Listing 12.05.1
Even if this Court were to find that the ALJ’s rejection of Ms. Mazan’s IQ score did not
rest on substantial evidence, remand would be inappropriate because Ms. Mazan also fails to
demonstrate the deficits in adaptive functioning required by the introductory paragraph of Listing
12.05. “Deficits in adaptive functioning can include limitations in areas such as communication,
self-care, home living, social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety.” Jackson v. Astrue, 467 F. App’x
214, 218 (4th Cir. 2012) (citing Atkins v. Virginia, 536 U.S. 304, 309 n. 3 (2002)). As has
already been established, Ms. Mazan has few deficits in adaptive functioning, as she navigates
public transportation independently and assists in caring for a daughter on disability. In addition,
the ALJ reasoned that Ms. Mazan has successfully performed part-time work in the past, and that
she was never enrolled in any special education classes. (Tr. 14); see also (Tr. 218-26) (Ms.
Mazan’s academic records indicating poor grades, but no special education classes).
Accordingly, Ms. Mazan does not meet the criteria of Listing 12.05.
Next, Ms. Mazan argues that the ALJ erred by assigning too little weight to the opinions
of four treating sources. Pl. Mot. 26-28. 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
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Moreover, because the records show that Ms. Mazan participated in a regular education curriculum in
school, the conclusions of physicians that she suffered “mild mental retardation” do not alone establish
that any deficits in adaptive functioning manifested during the developmental period. Dr. Ansel makes
the conclusory allegation that, “In the opinion of this examiner, [the borderline intellectual functioning]
has been the case since the developmental period.” (Tr. 387). However, he provides no explanation for
the conclusion.

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(W.D.N.C. 2001)). From the outset, it should be stated that 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.
The ALJ provided the appropriate analysis with respect to each physician’s opinion. The
first cited physician, Dr. Park, opined that Ms. Mazan has disabling low back pain and cervical
spondylosis. (Tr. 340-42, 389-91). However, as the ALJ noted, the MRI ordered by Dr. Park
showed only moderate degenerative changes. (Tr. 16, 348). Dr. Park recommended only
conservative treatment, and Ms. Mazan described her pain as only “4 out of 10” or “5 out of 10”
at two of her four physical therapy sessions. (Tr. 18); (Tr. 279) (physical therapy note reporting
pain level of “5”); (Tr. 281) (physical therapy note reporting pain level of “4”); (Tr. 250) (Dr.
Park note stating that MRI “looks reasonably good” and “I think we can continue to treat her
conservatively”); (Tr. 343) (Dr. Park note reiterating that “MRI of the lumbar spine . . . looks
reasonably good . . . I think the patient will benefit from physical therapy.”); (Tr. 388) (Dr. Park
treatment note from same date as 2011 opinion noting “an MRI that did not show any
abnormality or no acute changes in the past . . . I think the patient needs to continue to be treated
conservatively.) Because Dr. Park’s opinions suggesting a complete inability to work stand in
contrast to his examination notes and his conservative treatment, the ALJ appropriately assigned
the opinions “little weight.”
Similarly, Ms. Mazan’s treating physician, Dr. Folkemer, opined on August 12, 2010 that
Ms. Mazan would need to lie down 4-6 hours during a regular 8 hour workday and would miss
60 days of work per year. (Tr. 337-39). Dr. Folkemer filled out two earlier forms regarding Ms.
Mazan’s physical condition. In the form filled out in January, 2010, Dr. Folkemer did not even
list “back pain” as one of the diagnoses. (Tr. 289-90). Three months later, Dr. Folkemer
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completed the same form and included “chronic back pain” in the diagnoses rendered. (Tr. 294).
In a separate mental health form completed in January, 2010, Dr. Folkemer noted that “arthritis
may limit any heavy physical work.” (Tr. 292). He provided no explanation for the extreme
shift in his position, over only an eight month window, from finding a mere inability to perform
heavy physical work to a need to lie down for half or most of a workday. As the ALJ noted, Dr.
Folkemer’s opinion is not supported “with treatment records or other objective evidence to show
such limitations.” (Tr. 18). In fact, there are no treatment records from Dr. Folkemer in the
record, other than the various opinions references above.

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.”).

Accordingly, the assignment of “little weight” was supported by substantial

evidence.
Ms. Mazan also contests the assignment of weight to the opinions of Dr. Muneer, who
opined that her back pain met the criteria of Listing 1.04 and would render her unable to work.
(Tr. 368-72). The ALJ provided a persuasive justification for rejecting Dr. Muneer’s Listing
opinion, since Dr. Muneer provided no evidence of the compromise of a nerve root or spinal cord
as needed to establish the criteria of the Listing. (Tr. 12). Moreover, Dr. Muneer provided
almost no explanation for the conclusions that Ms. Mazan would be unable to sit for six hours,
stand for two hours, or lift objects weighing up to ten pounds, other than the conclusory
statement that, “Pt has chronic low back pain + bil. shoulder pain.” (Tr. 371-72). In assigning
“little weight” to Dr. Muneer’s opinion, the ALJ reasoned that the record evidence did not
support the limitations asserted by Dr. Muneer. (Tr. 19). I agree, given that the treatment notes
from Dr. Park and Ms. Mazan’s own descriptions of her activities of daily living suggest a
greater functional capacity than that found by Dr. Muneer.
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Finally, Ms. Mazan contests the assignment of weight to the opinion of Dr. Baum, who
treated her reflux disease. Pl. Mot. 27-28. Dr. Baum treated Ms. Mazan for less than two
months before rendering the opinion, and did not opine on capacity to work other than noting
that lifting heavy objects increases reflux disease and that Ms. Mazan would likely miss thirty or
more days of work per year. (Tr. 381-84). The ALJ assigned the opinion little weight, noting
that the reflux disease has been treated conservatively with Zantac and was therefore non-severe.
(Tr. 12, 19). In fact, Dr. Baum’s own opinion notes that the medication was increased to twice
per day “with relief.” (Tr. 381). I therefore find no fault with the ALJ’s assignment of “little
weight” to Dr. Baum’s conclusion that Ms. Mazan’s GERD would preclude her from working.
Ms. Mazan further contends that the ALJ should have found her arthritic changes in her
cervical spine to be severe at Step Two. Pl. Mot. 28-29. 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)). The ALJ acknowledged that the arthritic changes in her cervical
spine presented an impairment, but found it non-severe because an MRI, according to Ms.
Mazan, showed only a muscle strain. (Tr. 12, 65-66). Even if the ALJ erred in her evaluation of
Ms. Mazan’s neck impairments at Step Two, such error would be harmless. Because Ms. Mazan
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. Mazan’s ability to work. See 20 C.F.R. §
404.1523. The ALJ considered Ms. Mazan’s physical condition, including the allegations of
neck pain set forth in the record from Dr. Park, in her RFC analysis before concluding that Ms.
Mazan was capable of work. (Tr. 18-19).
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Ms. Mazan’s final argument is that the ALJ’s hypothetical question to the VE was
inadequate. Pl. Mot. 29-30. Ms. Mazan premises that argument on the ALJ’s determination of
an insufficient RFC assessment and rejection of opinions of treating physicians, and those bases
lack merit for the reasons described above. Ms. Mazan also contends that, because the ALJ
limited her to sedentary work and because she turned 50 years of age during the pendency of her
claim before the Appeals Council, a finding of disability should have been mandated by
Medical-Vocational (“Grid”) Rule 201.09. Pl. Mot. 29. However, the opinion being reviewed
by both the Appeals Council and this Court was issued on April 11, 2012, when Ms. Mazan was
49 years old. The ALJ properly assessed her status as that of a “younger individual age 45-49,”
(Tr. 19), and considered Grid Rule 201.18, which provided for a finding of “not disabled.” (Tr.
20). The subsequent reviewers of the ALJ’s opinion did not have responsibility to reconsider the
case under a new age category simply because of the passage of time, and Ms. Mazan cites no
authority suggesting an obligation to do so. Accordingly, remand is unwarranted.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court GRANT Defendant’s Motion for Summary Judgment (ECF No. 22); and
2. the Court DENY Plaintiff’s Motion for Summary Judgment (ECF No. 18) 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: May 8, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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