Middlekauff v. Colvin

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 5/19/2016. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
THOMAS E. MIDDLEKAUFF
Plaintiff,
v.
CAROLYN W. COLVIN
Acting Commissioner,
Social Security Administration
Defendant.

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Civil Action No. CBD-15-1399

MEMORANDUM OPINION
Thomas E. Middlekauff, (“Plaintiff”) brought this action under 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff’s claim for a period of Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act. Before the Court are Plaintiff’s Motion for
Summary Judgment (“Plaintiff’s Motion”) (ECF No. 12) and Defendant’s Motion for Summary
Judgment (“Commissioner’s Motion”) (ECF No. 13). The Court has reviewed the motions,
related memoranda, and the applicable law. No hearing is deemed necessary. See Local Rule
105.6 (D. Md.). For the reasons presented below, the Court hereby DENIES Plaintiff’s Motion,
and GRANTS Commissioner’s Motion.
I.

Procedural Background
Plaintiff applied for DIB on May 24, 2011, alleging disability beginning on June 18,

2009. R. 14. The claim was denied on November 1, 2011. Id. After Plaintiff asked for
reconsideration of the denial of benefits, Defendant again denied Plaintiff’s benefits application
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on July 24, 2012. Id. On August 21, 2012, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). R. 138-39. On February 4, 2014, Plaintiff had a hearing
before an ALJ, and on February 24, 2014, in a written decision, the ALJ determined that Plaintiff
was not disabled under sections 216(i) and 223(d) of the Social Security Act. R. 14-23.
On April 1, 2014, Plaintiff requested a review of the ALJ’s decision of February 24,
2014. R. 9-10. On April 3, 2015, the Appeals Council denied Plaintiff’ request for review. R.
1-3.
II.

Standard of Review
On appeal, the Court has the power to affirm, modify, or reverse the decision of the ALJ

“with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (2006). The Court
must affirm the ALJ’s decision if it is supported by substantial evidence and the ALJ applied the
correct law. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.”); see also Russell v. Comm'r of
Soc. Sec., 440 F. App’x 163, 164 (4th Cir. 2011). Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)) (internal quotation marks omitted); see also
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640,
642 (4th Cir. 1966)) (internal quotation marks omitted) (“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance. If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there is substantial evidence.”).
The Court does not review the evidence presented below de novo, nor does the Court
“determine the weight of the evidence” or “substitute its judgment for that of the Secretary if his

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decision is supported by substantial evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). The ALJ, not the Court, has the responsibility to make findings of fact and resolve
evidentiary conflicts. Id. If the ALJ’s factual finding, however, “was reached by means of an
improper standard or misapplication of the law,” then that finding is not binding on the Court.
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
The Court shall find a person legally disabled if he is unable “to do any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 20 C.F.R. § 404.1505(a) (2012). The Code of Federal
Regulations outlines a five-step process that the Commissioner must follow to determine if a
claimant meets this definition:
1) Determine whether the plaintiff is “doing substantial gainful activity.” 20 C.F.R. §
404.1520(a)(4)(i). If he is doing such activity, he is not disabled. If he is not doing
such activity, proceed to step two.
2) Determine whether the plaintiff has a “severe medically determinable physical or
mental impairment that meets the duration requirement in § 404.1509, or a
combination of impairments that is severe and meets the duration requirement.” 20
C.F.R. § 404.1520(a)(4)(ii). If he does not have such impairment or combination of
impairments, he is not disabled. If he does meet these requirements, proceed to step
three.
3) Determine whether the plaintiff has an impairment that “meets or equals one of [the
C.F.R.’s] listings in appendix 1 of this subpart and meets the duration requirement.”
20 C.F.R. § 404.1520(a)(4)(iii). If he does have such impairment, he is disabled. If
he does not, proceed to step four.
4) Determine whether the plaintiff retains the “residual functional capacity” to perform
“past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). If he can perform such work,
he is not disabled. If he cannot, proceed to step five.
5) Determine whether the plaintiff can perform other work, considering his residual
functional capacity, age, education, and work experience. 20 C.F.R. §
404.1520(a)(4)(v). If he can perform other work, he is not disabled. If he cannot, he
is disabled.
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Plaintiff has the burden to prove that he is disabled at steps one through four, and
Defendant has the burden to prove that Plaintiff is not disabled at step five. Pass v. Chater, 65
F.3d 1200, 1203 (4th Cir. 1995) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)).
III.

Analysis
The ALJ evaluated Plaintiff’s claim using the five-step sequential evaluation process. At

step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since
June 18, 2009, the alleged onset date. R. 16. At step two, the ALJ determined that Plaintiff has
the following severe impairments: an organic mental disorder, an anxiety disorder, a personality
disorder, and an affective disorder. Id. The ALJ found that these impairments cause “significant
vocationally relevant limitations.” Id. The ALJ further found that Plaintiff’s back pain “is not
severe in that it caused no more than minimally vocationally relevant limitations.” Id. At step
three, the ALJ determined that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).”
R. 17. Before considering the fourth step, the ALJ had to determine Plaintiff’s residual
functional capacity (“RFC”) under 20 C.F.R. § 404.1520(e). R. 15. The ALJ determined that
Plaintiff “has the [RFC] to perform a full range of work at all exertional levels” with certain
nonexertional limitations: Plaintiff “is limited to understanding, remembering, and carrying out
short, simple instructions;” Plaintiff “is limited to only occasional contact with supervisors, coworkers, and the public;” and Plaintiff “cannot perform production rate work, but can perform
goal-oriented work.” R. 18. At step four, the ALJ determined that Plaintiff is unable to perform
any past relevant work. R. 21. At step five, the ALJ determined that “considering [Plaintiff’s]
age, education, work experience, and [RFC], there are jobs that exist in significant numbers in
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the national economy that [Plaintiff] can perform.” R. 22. Therefore, the ALJ concluded that
Plaintiff “has not been under a disability, as defined in the Social Security Act, from June 18,
2009, through the date of this decision.” R. 23.
On appeal, Plaintiff argues that the Court should enter judgment as a matter of law in his
favor or in the alternative, remand this matter to the Social Security Administration for a new
administrative hearing, for the following reasons:
1) The ALJ did not give sufficient weight to the treating medical source, John C.
Brown, Jr. MA, LCPC;
2) The ALJ did not give sufficient weight to the lay witness, David T. Hercules;
3) The ALJ did not give sufficient weight to Plaintiff’s primary care physician,
Vincent Cantone, M.D.;
4) The ALJ did not properly determine Plaintiff’s RFC;
5) The ALJ did not ask the Vocational Expert about Plaintiff’s specific
limitations and therefore the ALJ should not have relied on the opinion of the
Vocational Expert.
For the reasons set forth below, the Court rejects Plaintiff’s arguments and affirms the ALJ’s
decision.
A. The weight assigned by the ALJ to John C. Brown, Jr. MA, LCPC and the treating
physician Vincent Cantone, M.D. was Appropriate and Supported by Substantial
Evidence.
Plaintiff asserts that the ALJ did not give sufficient weight to the treating medical source,
John C. Brown, Jr., MA, LCPC. Pl.’s Mot. 3-5. Plaintiff claims that the ALJ made a legal error
when he did not give sufficient weight to Mr. Brown’s opinions and observations, and when the
ALJ determined that Mr. Brown was not an “acceptable medical source.” Pl.’s Mot. 4.
“When evaluating medical opinions, the ALJ should consider ‘(1) whether the physician
has examined the applicant, (2) the treatment relationship between the physician and the

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applicant, (3) the supportability of the physician’s opinion, (4) the consistency of the opinion
with the record, and (5) whether the physician is a specialist.’” Dunn v. Colvin, 607 F. App’x.
264, 267 (4th Cir. 2015) (citations omitted). “An ALJ’s determination as to the weight to be
assigned to an opinion generally will not be disturbed absent some indication that the ALJ has
dredged up ‘specious inconsistencies,’ . . . or has failed to give a sufficient reason for the weight
afforded a particular opinion.” Id. (citation omitted).
A treating physician’s opinion on issues of the nature and severity of the impairments
will be given controlling weight when well supported by medically acceptable clinical and
laboratory diagnostic techniques and when the opinion is consistent with the other substantial
evidence in the record. 20 C.F.R. § 404.1527(c)(2); see Dunn, 607 F. App’x at 267. Conversely,
however, “the ALJ holds the discretion to give less weight to the testimony of a treating
physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 171, 178 (4th
Cir. 2001). “[I]f a physician’s opinion is not supported by clinical evidence or if it is inconsistent
with other substantial evidence, it should be accorded significantly less weight.” Craig v.
Chater, 76 F.3d 585, 590 (4th Cir. 1996). An ALJ may reject a treating physician’s opinion in
its entirety and afford it no weight if the ALJ gives specific and legitimate reasons for doing so.
See Bishop v. Comm'r of Soc. Sec., 583 F. App’x 65, 67 (4th Cir. 2014) (per curiam) (citing
Holohan v. Massanari, 246 F.3d 1195, 1202-03 n.2 (9th Cir. 2001); Craig, 76 F.3d at 589-90).
A medical expert’s opinion as to whether one is disabled is not dispositive; opinions as to
disability are reserved for the ALJ and for the ALJ alone. See 20 C.F.R. § 404.1527(d)(1).
Generally, the more the medical source presents relevant evidence to support his opinion, and the
better that he explains it, the more weight his opinion is given. See 20 C.F.R. § 404.1527(c)(3).

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Additionally, the more consistent the opinion is with the record as a whole, the more weight the
ALJ will give to it. See 20 C.F.R. § 404.1527(c)(4); see also Dunn, 607 F. App’x at 268.
The ALJ gave Mr. Brown’s opinion no weight because he was not an acceptable medical
source. R. at 21. Mr. Brown, a licensed professional counselor, who according to the ALJ, had a
psychotherapy session with Plaintiff on January 15, 2014, reported that Plaintiff suffered from
acute depression, acute and debilitating anxiety, and mood swings, and that he was unlikely to
engage in substantial gainful employment. R. 20. Mr. Brown, however, is not an acceptable
medical source. A therapist is not an “acceptable medical source;” rather therapists are “other
sources” as defined in 20 C.F.R. § 404.1513(d). See Mason v. Astrue, JKS–10–2157, 2013 WL
990399, at *3 (D. Md. March 12, 2013). The ALJ may, but is not required, to use evidence from
“other sources” to show the severity of a person’s impairment and how it affects their ability to
work. See 20 C.F.R. § 404.1513(d). Since Mr. Brown is not an acceptable medical source, his
opinion is not entitled to controlling weight. See Johnson v. Comm’r, Social Sec. Admin., No.
SAG–12–3804, 2013 WL 6844373, at *3 (D. Md. Dec. 26, 2013).
Dr. Cantone is Plaintiff’s treating physician. According to Plaintiff, the ALJ did not give
sufficient weight or properly analyzed Dr. Cantone’s opinion, and second-guessed him. Pl.’s
Mot. 5-6. The ALJ gave Dr. Cantone’s opinion no weight “because it was internally
inconsistent.” R. 21. According to the ALJ, Dr. Cantone reported that Plaintiff was permanently
disabled and at the same time reported that his symptoms were stable, and that he was disabled
regarding his expressive language. Id.
In this case, substantial evidence supports the weight the ALJ afforded to Dr. Cantone’s
opinion. “[T]he ALJ need not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”

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Tilley v. Colvin, No. TMD 14-3266, 2016 WL 775420, at *12 (D. Md. Feb. 29, 2016) (citations
omitted) (upholding ALJ’s rejection of treating physician’s opinion where it was contradicted by
evidence in record). In this case, Dr. Cantone opined in February 2010 that Plaintiff was
“permanently disabled due to cognitive problems” and was “disabled with expressive language
difficulty.” R. 19. Subsequently in April 2012, Dr. Cantone opined that Plaintiff’s anxiety and
irritability had improved and that his memory loss was stable. R. 20. Dr. Cantone’s records
through January 2014 also show that Plaintiff’s symptoms had improved, and that there was still
room for improvement. Id. In addition, William Gene Miller, Ph.D., who examined Plaintiff
psychologically, concluded that although he was “very anxious and moderately depressed,”
Plaintiff was “functioning in the average intelligence range.” Id. Dr. Seth Tuwiner, who
examined Plaintiff on September 22, 2011, concluded that although Plaintiff had an “anxious
affect,” he was “alert and oriented” and had “no gross evidence of speech impairment or higher
cortical dysfunction.” Id. Dr. Thomas W. Furlow, who did a mental status examination on
Plaintiff in May 2010, concluded that although Plaintiff had chronic anxiety disorder, he was
fully oriented, with “normal cognitive function including insight and judgment,” and could be a
“candidate for vocational rehabilitation in order to enter a new career.” R. 19-20. In light of the
fact that Dr. Cantone’s opinion was internally inconsistent, and inconsistent with other
substantial evidence in the record, the ALJ gave Dr. Cantone’s opinion the appropriate weight.
B. The weight assigned by the ALJ to the lay witness’s opinion was appropriate and
supported by substantial evidence.
Plaintiff asserts that the ALJ did not give sufficient weight to David T. Hercules, a lay
witness. Pl.’s Mot. 3-5. Plaintiff claims that the ALJ, aside from stating that Mr. Hercules’
written statement was “fully considered and . . . largely corroborative of [Plaintiff’s]

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allegations,” provided no additional analysis or evaluation of Mr. Hercules’ statement. Pl.’s
Mot. 4.
Plaintiff’s contention regarding the ALJ’s consideration of the lay witness Mr. Hercules
in unavailing. As Defendant highlights, under the regulations, 20 C.F.R. §§ 404.1529(c)(3),
404.1545(a)(3), the ALJ is required to consider testimony from family and friends submitted on
behalf of the claimant, but the ALJ is not required to provide express reasons for rejecting
testimony from each lay witness. See Henig v. Colvin, No. TMD 13–1623, 2015 WL 5081619,
at *11 (D. Md. Aug. 26, 2015) (citing Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). In
this case, the ALJ considered the written statement submitted by Mr. Hercules, and stated that it
was “fully considered and were largely corroborative of [Plaintiff’s] allegations. R. 19. Since
the regulations do not require the ALJ to provide additional analysis or express reasons for
rejecting testimony from a lay witness, Plaintiff’s argument fails.
C. The ALJ properly assessed Plaintiff’s RFC.
Plaintiff argues that the ALJ did not properly determine his RFC. Pl.’s Mot. 6. For
example, Plaintiff asserts that the ALJ did not discuss why Plaintiff’s fatigue, which was referred
to numerously in the medical records, was not disabling for causing loss of productivity, even
though the ALJ posed a question about fatigue to the vocational expert. Id.
RFC is a measure of a person’s ability to perform physical and mental activities in a work
setting on a “regular and continuing basis,” (i.e., eight hours a day, five days a week—in spite of
any impairments). 20 C.F.R. § 404.1545(b), (c). In making this assessment, the ALJ must
consider all relevant evidence of [the] claimant’s impairments and any related symptoms (e.g.,
pain). See 20 C.F.R. § 404.1545(a); see also, 20 C.F.R. § 404.1529(a). The ALJ must also
present a “narrative discussion describing how the evidence supports each conclusion, citing

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specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g. daily activities,
observations),” and must “explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.” SSR 96–8p, 1996 WL 374184 at *7
(S.S.A.); Barton v. Astrue, 495 F. Supp. 2d 504, 510 (D. Md. 2007).
In this case, the ALJ concluded that Plaintiff had the RFC to perform a full range of work
at all exertional levels, but that Plaintiff was limited to understanding, remembering, and
carrying out short, simple instructions. R. 18. The ALJ further concluded that Plaintiff was
limited to only occasional contact with supervisors, co-workers, and the public, and that Plaintiff
cannot perform production rate work, but can perform goal-oriented work. Id.
Plaintiff’s argument is unavailing because in assessing Plaintiff’s RFC, the ALJ took into
account Plaintiff’s testimony of “severe exhaustion,” his written statement indicating he
“required a lot of rest,” and indicating he was “tired all the time, and frequently had to lie down
and take naps.” R. 18-19. After considering all the evidence in the case, including the medical
evidence, State agency assessments, and Plaintiff’s testimony and written statement, the ALJ
concluded that Plaintiff’s impairments were not “totally disabling” and did not “preclude the
performance of all substantial gainful activity.” R. 20-21. The court finds that the ALJ provided
a full narrative of his consideration of the evidence on file, specifically taking note of all the
evidence presented by Plaintiff with regard to his exertional limitations, and explaining why that
evidence was not compelling.
D. The ALJ asked the proper hypothetical question to the vocational expert and
included Plaintiff’s impairments as supported by the record.
Plaintiff claims that the ALJ should not have relied on the opinion of the vocational
expert because the ALJ did not ask him about each symptom Plaintiff experienced. Pl.’s Mot. 7.
Plaintiff further contends that the ALJ did not include in his findings of Plaintiff’s RFC, and in
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his question to the vocation expert, other specific limitations found by State examiners (i.e.,
moderate limitations in maintaining attention and concentration).
“The purpose of bringing in a vocational expert is to assist the ALJ in determining
whether there is work available in the national economy which the particular claimant can
perform.” Walker v. Bowen, 889 F. 2d 47, 50 (4th Cir. 1989). “For a vocational expert’s opinion
to be relevant, it must be in response to a proper hypothetical question that sets forth all of the
claimant’s impairments.” Russell v. Barnhart, 58 F. App’x 25, 30 (4th Cir. 2003) (citation
omitted). “While questions posed to the vocational expert must fairly set out all of the
claimant’s impairments, the question need only reflect those impairments supported by the
record.” Id. “The hypothetical question may omit non-severe impairments, but must include
those that the ALJ finds to be severe.” Id.
“The only relevant limitations for purposes of the hypothetical questions are those that
are included in the RFC.” Mason v. Astrue, JKS–10–2157, 2013 WL 990399, at *4 (D. Md.
March 12, 2013). “It is the claimant’s functional capacity, not his clinical impairments, that the
ALJ must relate to the vocational expert.” Id. (quoting Fisher v. Barnhart, 181 F. App’x 359,
364-65 (4th Cir. 2006)). The Court finds that the ALJ’s hypothetical question posed to the
vocation expert adequately contemplated all of Plaintiff’s impairments and limitations reflected
in his RFC. In the first hypothetical question, the ALJ asked the vocational expert to consider a
person who was the same age, had the same education and work experience as Plaintiff, with no
physical exertional limitations, but the following mental limitations: the individual could
understand, remember, and carry out short, simple instructions, occasionally be in contact with
supervisors, co-workers, and the public, not do production ate work, but rather do goal oriented
work. R. 56. This hypothetical person set forth all of Plaintiff’s impairments supported by the

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record and the relevant evidence. At a previous step, the ALJ had determined, after careful
consideration of the entire records, that Plaintiff had the following non-exertional limitations: he
was limited to understanding, remembering, and carrying out short, simple instructions; he was
limited to only occasional contact with supervisors, co-workers, and the public; and although he
could not perform production rate work, he could perform goal-oriented work. R. 18. The
question posed by the ALJ to the vocation expert does not need to encompass impairments not
supported by the record. The ALJ’s hypothetical question did address Plaintiff’s memory,
attention, and concentration issues. Therefore, Plaintiff’s argument is unavailing because the
ALJ’s hypothetical question included the impairments supported by the record.
IV.

Conclusion
Based on the foregoing, the Court DENIES Plaintiff’s Motion and GRANTS

Commissioner’s Motion.
May 19, 2016

/s/
Charles B. Day
United States Magistrate Judge

CBD/yv

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