Scott v Colvin

Filing 20

MEMORANDUM AND ORDER denying 15 Motion by Plaintiff for Summary Judgment; granting 19 Motion by defendant for Summary Judgment. Signed by Magistrate Judge Stephanie A Gallagher on 12/18/2014 (cags, 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]

December 18, 2014
LETTER TO COUNSEL
RE:

Stephen Scott v. Commissioner, Social Security Administration;
Civil No. SAG-13-3173

Dear Counsel:
On October 25, 2013, Plaintiff Stephen Scott petitioned this Court to review the Social
Security Administration’s final decision to deny his claims for Disability Insurance Benefits and
Supplemental Security Income. (ECF No. 1). I have considered the parties’ cross-motions for
summary judgment. (ECF Nos. 15, 19). I find that no hearing is necessary. See Loc. R. 105.6
(D. Md. 2014). This Court must uphold the decision of the agency if it is supported by
substantial evidence and if the agency employed proper legal standards. See 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that standard, I
will deny Plaintiff’s motion and grant the Commissioner’s motion. This letter explains my
rationale.
Mr. Scott protectively filed claims for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on November 5, 2009. (Tr. 75–76, 136–43). He alleged
a disability onset date of September 28, 2009. (Tr. 136, 140). His claims were denied initially
and on reconsideration. (Tr. 79–83, 87–90). A hearing was held on January 17, 2012, before an
Administrative Law Judge (“ALJ”). (Tr. 44–74). Following the hearing, the ALJ determined
that Mr. Scott was not disabled within the meaning of the Social Security Act during the relevant
time frame. (Tr. 26–41). The Appeals Council denied Mr. Scott’s request for review, (Tr. 1–5),
so the ALJ’s decision constitutes the final, reviewable decision of the agency.
The ALJ found that Mr. Scott suffered from the severe impairments of diverticulitis,
status post abdominal surgery with small bowel obstruction, degenerative disc disease,
depression, bipolar disorder, anxiety disorder, and history of substance abuse. (Tr. 31). 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(c) and 416.967(c) except that he
would require simple, unskilled jobs, with limited public contact due to symptoms of pain and
depression.” (Tr. 33). After considering the testimony of a vocational expert (“VE”), the ALJ
determined that Mr. Scott could perform jobs existing in significant numbers in the national
economy and that therefore he was not disabled. (Tr. 40–41).
Mr. Scott raises two arguments on appeal, both of which fault the ALJ’s assessment of
the opinions of his treating physicians. Each argument lacks merit and is addressed below.

Stephen Scott v. Commissioner, Social Security Administration
Civil No. SAG-13-3173
December 18, 2014
Page 2

First, Mr. Scott argues that the ALJ erred in evaluating the opinions of his treating
psychologist, Dr. Kaplan. Specifically, he claims that the ALJ should have credited Dr. Kaplan’s
two psychological assessments, which indicate worsening symptoms. The Fourth Circuit set
forth parameters for evaluating medical opinions of treating physicians in Craig, 76 F.3d at 590,
which were later refined by amendments to 20 C.F.R. §§ 404.1527 and 416.927. See Pitman v.
Massanari, 141 F. Supp. 2d 601, 608 (W.D.N.C. 2001). When a medical opinion is from a
“treating source,” it is given controlling weight only if it is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant’s] case record.”
20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). In this case, the ALJ determined that Dr. Kaplan’s opinions were not entitled to
controlling weight because they were not supported by medical evidence and were inconsistent
with the other evidence. (Tr. 39). The ALJ stated that “Dr. Kaplan’s only documented treatment
record in November 2011 did not indicate any abnormal mental findings . . . ,” which, Mr. Scott
claims, indicates that the ALJ did not consider Dr. Kaplan’s treatment records from February
2011 to October 2011. Pl.’s Mem. 17. However, the record before the ALJ included only one
treatment note from Dr. Kaplan, who did not begin treating Mr. Scott until May 20, 2011. (Tr.
484). Instead, each treatment note cited by Mr. Scott is from Sharon Nayfack, a Licensed
Clinical Social Worker. Pl.’s Mem. 18–20; (Tr. 421–37). The one treatment note from Dr.
Kaplan that was present in the record before the ALJ was an October 26, 2011, mental health
follow-up that listed Mr. Scott’s medications and vitals, but did not include any notes. (Tr. 403).
Thus, Mr. Scott has not identified any evidence undermining the ALJ’s determination that Dr.
Kaplan’s opinions were not supported by medical evidence, and the ALJ’s only error was his
statement that the note from Dr. Kaplan was dated November 2011.
Mr. Scott also contends that the ALJ should not have discredited Dr. Kaplan’s
assessments on the basis of an earlier-dated State agency assessment. Pl.’s Mem. 16–17.
However, the Commissioner must consider, and is entitled to rely on, opinions from nonexamining doctors. See SSR 96-6p, at *3 (“In appropriate circumstances, opinions from State
agency medical and psychological consultants and other program physicians and psychologists
may be entitled to greater weight than the opinions of treating or examining sources.”). The fact
that the State agency physician’s report was prepared before Dr. Kaplan began treating Mr. Scott
is certainly relevant, but it does not undermine the validity of the State agency physician’s
conclusions as of the time they were rendered. It is clear from the opinion that the ALJ
considered the subsequent medical evidence of record, particularly in light of the fact that his
RFC assessment was more limited than the opinion of the State agency physician.
Mr. Scott submitted additional treatment notes from Dr. Kaplan to the Appeals Council
(“AC”) as “new and material evidence” not considered by the ALJ. Mr. Scott argues that the
AC’s evaluation of the additional treatment notes from Dr. Kaplan was inadequate. The AC
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). Evidence is “new” if “it is not duplicative or cumulative.” Id. at
96. “Evidence is material if there is a reasonable possibility that the new evidence would have
changed the outcome.” Id. “[T]he regulatory scheme does not require the [AC] to do anything

Stephen Scott v. Commissioner, Social Security Administration
Civil No. SAG-13-3173
December 18, 2014
Page 3

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) (internal quotation
marks omitted). The AC is not required to take any specific action in response to new and
material evidence, and it is not required to provide a detailed explanation of its evaluation. Id.
In this case, the “new” evidence included treatment notes documenting three appointments with
Dr. Kaplan: (1) a May 20, 2011, initial visit; (2) an August 23, 2011, follow-up; and (3) a
January 10, 2012, follow-up. (Tr. 463–64, 455, 445). The AC made that evidence part of the
record, but explained that after considering whether the ALJ’s “conclusion is contrary to the
weight of evidence currently of record,” it did not find that the additional evidence provided a
basis for changing the ALJ’s decision. (Tr. 1–2, 5). The record thus demonstrates the AC’s
receipt and consideration of the additional evidence. Moreover, I do not find that the additional
evidence adds credibility to the extreme functional limitations expressed in the opinions of Dr.
Kaplan. Mr. Scott’s initial visit with Dr. Kaplan indicates symptoms of depression and anxiety
with a GAF of 40. (Tr. 463–64). However, on the first follow-up Mr. Scott was “doing well”
and was assigned a GAF of 50, and at the later follow-up, Mr. Scott indicated that his mental
impairments were well controlled with medication, and he was assigned a GAF of 55. (Tr. 455,
445). Thus, contrary to Mr. Scott’s assertions, Dr. Kaplan’s treatment notes undermine the
extreme limitations indicated in his opinions, and indicate improving, rather than worsening,
symptoms. Accordingly, I find that the ALJ’s evaluation of Dr. Kaplan’s opinions is supported
with substantial evidence, and that the AC did not err in declining review the ALJ’s decision
after considering the new treatment notes from Dr. Kaplan.
Second, Mr. Scott argues that the ALJ should not have discredited the two “Medical
Assessment of Ability to do Work Related Activities (Physical)” forms completed by his treating
physician, Dr. Arjadon. If a treating source’s medical opinion is not assigned controlling weight,
then, in determining the weight to give the opinion, the ALJ should consider: (1) the length of
the treatment relationship and its nature and extent; (2) the supportability of the opinion; (3) the
opinion’s consistency with the record as a whole; (4) whether the source is a specialist; and (5)
any other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c),
416.927(c). In this case, the ALJ discounted Dr. Arjadon’s opinions because they were (1) based
solely on Mr. Scott’s subjective complaints, (2) inconsistent with the medical evidence as a
whole, (3) inconsistent with one another, and (4) based partially on issues reserved to the
Commissioner. (Tr. 38). Specifically, the ALJ referenced a treatment note from the same date
as the opinions, which indicated that Mr. Scott denied experiencing any pain symptoms. (Tr. 38,
324–25). All of Dr. Arjadon’s explanations for his opinions were, indeed, based on Mr. Scott’s
subjective complaints. See (Tr. 307–09). Moreover, Mr. Scott has not identified any specific
treatment notes from Dr. Arjadon or any other treating physician to support the limitations Dr.
Arjadon proferred. Earlier in his opinion, the ALJ provided a thorough review of the medical
evidence he found undermined Mr. Scott’s claims concerning his inability to perform work
activities. (Tr. 36). That evidence included a treatment note from one month prior to Dr.
Arjadon’s completion of the opinion forms, in which Mr. Scott declined the treatment
recommendations of Dr. Spinuzza, a treating specialist, stating that he was going to live with his
symptoms. (Tr. 36, 295). After comparing Dr. Arjadon’s opinions, although they are certainly
not identical to one another, they are consistent in many respects. See (Tr. 307–12). However,

Stephen Scott v. Commissioner, Social Security Administration
Civil No. SAG-13-3173
December 18, 2014
Page 4

in light of the additional factors that the ALJ cited in support of his evaluation of Dr. Arjadon’s
opinion, any error in his statement that the opinions contradict each other is harmless.
Accordingly, I find that the ALJ provided substantial evidence in support of his assessment of
Dr. Arjadon’s opinion.
For the reasons set forth herein, Mr. Scott’s Motion for Summary Judgment (ECF No.
15) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 19) is GRANTED.
The clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge