Groves v. Astrue

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge Jillyn K Schulze on 3/6/2014. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHERIE DENISE GROVES
v.
CAROLYN W. COLVIN
Acting Commissioner of Social Security

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Civil No. JKS 13-083

MEMORANDUM OPINION
Plaintiff Cherie Denise Groves brought this action pursuant to 42 U.S.C. § 405(g) for
review of the Social Security Administration’s (SSA) final decision denying her claim for
disability insurance benefits (DIB) under the Social Security Act, 42 U.S.C. §§ 401 et. seq. (the
Act). Both parties’ motions for summary judgment are ready for resolution, see ECF Nos. 14
and 19, and no hearing is necessary. See Local Rule 105.6. For the reasons set forth below,
Groves’ motion for summary judgment is denied and the Commissioner’s motion for summary
judgment is granted.
1. Background.
Groves filed an application for DIB on May 8, 2009, R. 44, and supplemental security
income (SSI) on May 13, 2010,1 R. 75-79, with an initial disability onset date of November 1,
1999, R. 75, which was later amended to February 17, 2010. R. 33. Her DIB claim was denied
initially on December 18, 2009, R. 341, and upon reconsideration on May 4, 2010. R. 347.
Groves then filed a written request for a hearing before an Administrative Law Judge (ALJ), and
a hearing was held on January 26, 2012. R. 12. ALJ Eugene Bond issued a decision on
February 22, 2012, finding that Groves was not disabled under the Act because she retained the
residual functional capacity (RFC) to perform jobs available in significant numbers in the
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Groves withdrew her application for SSI when she amended her alleged onset date to February 17, 2010, a date later than her
date last insured of December 31, 2001. R. 20.

national economy. R. 19. The Appeals Council subsequently denied Groves’s request for
review on November 9, 2012, R. 5-8, and the ALJ’s decision became the final, reviewable
decision of the agency.
2. ALJ’s Decision.
The ALJ evaluated Groves’ disability claim using the five-step sequential process
described in 20 C.F.R. § 404.1520. At step one, the ALJ found that Groves had not engaged in
any substantial gainful activity since the alleged onset date of February 17, 2010. R. 14. At step
two, the ALJ found that Groves had the following severe medical impairments: depression,
anxiety, cervical and lumbar degeneration, hip osteoarthritis, fibromyalgia, rheumatoid arthritis,
and diabetes mellitus. Id. At step three, the ALJ found that Groves did not suffer from an
impairment, or combination of impairments, listed in 20 C.F.R Part 404, Subpart P, Appendix 1.
R. 15. At step four, the ALJ reviewed the record and determined that Groves possessed the RFC
to perform sedentary, unskilled work, with the option to alternate between sitting and standing at
will, and limited dominant-hand usage. R. 16. At step five, given Groves’ age, high school
education, work experience, and RFC, the ALJ considered the testimony of the vocational expert
(VE) and concluded that Groves is eligible for work that exists in significant numbers in the
national economy. Id. Accordingly, the ALJ found that Groves was not disabled as defined
under the Act and denied her application for benefits.
3. Standard of Review.
The role of this court on review is to determine if the ALJ applied the correct legal
standards in finding Groves not disabled, and if substantial evidence supports that conclusion.
42 U.S.C. § 405(g); Pass v. Chater, 65 F.3d 1200, 1202 (4th Cir. 1995). Substantial evidence
requires “such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotation marks
omitted). To be substantial, there must be more than a scintilla, but less than a preponderance, of
the evidence presented. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). This court may
not try the case de novo, and will affirm a decision if it is supported by substantial evidence. Id.
If conflicting evidence could cause reasonable minds to differ on whether or not the claimant is
disabled, it is the ALJ’s right and responsibility to make that determination. Craig v. Chater, 76
F.3d, 589 (4th Cir. 1996) (citing Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)).
4. Discussion.
Groves argues that the ALJ failed to properly evaluate the opinions of her treating
physician, Dr. Szkotnicki,2 because he assigned “little weight” to the opinions without fully
considering the factors set out in 20 C.F.R. 404.1527(d).3 ECF No. 14 at 14; R. 18. However,
“[a] formulaic recitation of the factors is not required so long as it is apparent that the ALJ was
aware of and considered each one.” Carter v. Astrue, No. CBD 11-2980, 2013 U.S. Dist. LEXIS
116856, *26 (D. Md. Aug. 19, 2013) (citation omitted). Here, while it is true that the ALJ did
not explicitly enumerate the relevant factors in assigning Dr. Szkotnicki’s opinions “little
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The Commissioner argues that the ALJ “was being more than generous,” ECF No. 19 at 15, in labeling Dr. Szkotnicki as
Groves’ treating physician because all of the treatment notes from Dr. Szkotnicki’s office are filled out and signed by the
certified nurse practitioner, Naomi Constantine. See R. 298-332. Groves contends that, “[c]onsistent with the current practice in
many medical facilities,” Ms. Constantine was supervised by and collaborated with Dr. Szkotnicki in completing her evaluations
of Groves. ECF No. 20 at 2. According to the regulations, a treating physician is a physician who has had an ongoing treatment
relationship with the patient, 20 C.F.R. § 404.1502, and has the best ability to provide a detailed, longitudinal picture of the
patient’s medical impairments. 20 C.F.R. § 404.1527. The Commissioner is correct that Dr. Szkotnicki did not conduct any of
Groves’ evaluations, and thus, does not fit the definition of a treating physician; his opinions—to the extent these opinions can be
attributed to him—should not be entitled to the deference normally associated with treating source opinions. This is especially
true because both of the medical assessments attributed to Dr. Szkotnicki were dated January 18, 2012, which lends more support
to the notion that he did not engage in an ongoing treatment relationship with Groves. (To clarify, even though Ms. Constantine
conducted all of the evaluations and filled out all of the forms within Dr. Szkotnicki’s office, Dr. Szkotnicki’s name appears
below Ms. Constantine’s name at R. 328-332, thus the ALJ attributed the documents found at R. 298-327 solely to Ms.
Constantine and the documents found at R. 328-332 solely to Dr. Szkotnicki.) Regardless, the analysis of this issue would not be
different even if Dr. Szkotnicki strictly qualified as a treating physician. The court will adopt the terminology used by the ALJ
and refer to Dr. Szkotnicki as the treating physician.
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The ALJ must consider the following factors if he finds that the treating physician’s opinion is not entitled to controlling
weight: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment
relationship; (3) the supportability of the opinion with relevant medical evidence; (4) its consistency with the record as a whole;
(5) whether it is the opinion of a specialist regarding his or her area of specialty; and (6) any other factors that tend to support or
contradict the opinion. 20 C.F.R. § 404.1527(d)(2)-(6).

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weight,” the ALJ correctly noted that Dr. Szkotnicki’s opinions, R. 328-332, did not rely on, or
otherwise reference, any objective medical evidence. R. 18. “[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.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).
Regardless, Groves has failed to explain how she was prejudiced by the ALJ’s analysis. Any
error in failing to explicitly address the § 404.1527 factors was harmless. York v. Astrue, Civ.
No. TMD 11-902, 2013 U.S. Dist. LEXIS 71960, *9-12 (D. Md. May 20, 2013) (“While the ALJ
could have been more specific in his findings, the Court finds that his overall discussion in his
opinion supports his findings.”); Morgan v. Barnhart, 142 Fed. Appx. 716, 722-23 (4th Cir.
2005) (“Even assuming, however, that this opinion is a medical opinion due special weight under
the treating-physician rule, any error in failing to credit this opinion was harmless.”).
Groves also asserts that the ALJ provided “no discussion of any specific evidence that is
inconsistent with Dr. Szkotnicki’s opinions.” ECF No. 14 at 14-16. She also references an MRI
showing a congenital blocked vertebrae at C2-3, R. 115, and her own subjective complaints of
back pain on an RFC questionnaire, R. 330, but fails to cite an assessment from Dr. Szkotnicki
that analyzes or interprets this evidence. The ALJ stated that he was rejecting Dr. Szkotnicki’s
opinions because they were unsupported by either objective evidence or treatment notes.
(R. 18). This is an adequate basis for the rejection. In addition, the ALJ specifically
incorporated this MRI and Groves’ testimony in fashioning the RFC, see R. 17 and 115.
Groves next argues that “the ALJ inaccurately and selectively described consultative
examiner Dr. Merrion’s assessment” with regard to her depression and anxiety. ECF No. 14 at
16. Dr. Merrion, a licensed psychologist, examined Groves on September 8, 2010. R. 220-28.
Dr. Merrion found that there could be interruptions in Groves’ work day “due to mood swings

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and/or anxiety,” but that Groves was “a fair candidate for interacting with the public or coworkers” and that she had only “a mildly to moderately impaired ability to deal with the normal
stressors and demands encountered in competitive employment.” R. 225. Here, again, Groves
fails to explain what part of Dr. Merrion’s assessment the ALJ improperly analyzed. The ALJ
noted the severity of Groves’ depression and anxiety and appropriately limited Groves to
sedentary, unskilled work to account for these impairments. Hill v. Comm’r of Soc. Sec., 106
Fed. Appx. 159, 160 (4th Cir. 2004) (“[A]lthough [plaintiff] clearly suffers from back and lung
problems, as well as anxiety, substantial evidence supports a finding that these deficiencies do
not significantly limit Hill’s ability to work a light to sedentary unskilled job.”); Seifert v.
Comm’r, SSA, Civ. No. SAG 11-1051, 2013 U.S. Dist. LEXIS 63784, at *3 (D. Md. May 2,
2013) (concluding that the ALJ appropriately determined that plaintiff’s mild to moderate mental
limitations related to her depression warranted a restriction to sedentary, unskilled work).
Groves does not suggest how the ALJ should have fashioned the RFC any differently on account
of her depression and anxiety.
Groves also argues that the ALJ failed to specifically identify the limitations associated
with her limited dominant-hand usage. ECF No. 14 at 18. The ALJ noted that “in July 2008, an
examination showed stiffness and tenderness in the claimant’s hands and she was diagnosed with
carpal tunnel syndrome.” R. 17, 152. The ALJ also noted that, in August 2010, Dr. Rashid
Khan stated that there were no signs of acute or chronic inflammation in her upper extremities,
her grip strength was normal, her muscle strength was a 5/5 and her range of motion was within
functional limits. R. 216. The ALJ weighed this conflicting evidence and decided to limit
Groves’ dominant-hand usage. Groves indicates that the ALJ should have given more weight to
the opinion of Ms. Constantine, a certified nurse practitioner working under Dr. Szkotnicki, who

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determined that Groves could not use her hands for simple grasping, pushing or pulling of
controls, or fine manipulation, R. 332, but this lone notation by Ms. Constantine is not supported
by any objective medical evidence in the record.
Groves also argues that a detailed, and potentially more restrictive, description of Groves’
dominant-hand limitation is necessary because two of the three jobs provided by the VE require
frequent reaching and handling and occasional fingering. ECF No. 14 at 18. However, as
discussed above, the extreme limitations related to Groves’ hand usage are not supported by
objective medical evidence. In addition, one of the occupations named by the VE, unarmed
security worker, requires no reaching, handling or fingering and there are 37,000 of these
positions nationally and 860 positions locally. R. 39. This pool of positions is more than
adequate to support the ALJ’s conclusion that there are jobs that exist in significant numbers in
the national and local economies that Groves can perform. R. 19; see Hicks v. Califano, 600
F.2d 1048, 1051 n.2 (4th Cir. 1979) (“Claimant contends that the light and sedentary jobs
described by the vocational expert that of hand packager, auto cleaner, and cloth folder do not
exist in significant numbers within the region. We do not think that the approximately 110 jobs
testified to by the vocational expert constitute an insignificant number.”).
Next, Groves argues that the ALJ failed to adequately justify why he found her to be not
credible. ECF No. 14 at 19. “Conflicts in the evidence and credibility determinations are within
the discretion of the ALJ, and we may not substitute our judgment for that of the ALJ.” Landry
v. United States Dep’t of Health & Human Servs., No. 92-1889, 1993 U.S. App. LEXIS 6724, at
*10 (4th Cir. Mar. 26, 1993). Here, the ALJ noted that, according to Groves, her impairments
caused her to experience difficulty concentrating, racing thoughts, memory problems, isolation,
inability to be in crowds, leg and back spasms, cramps, pain, and a need for a cane to walk. R.

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17. The ALJ concluded that the intensity of Groves’ symptoms was inconsistent with her ability
to prepare meals, cook a roast, dust, load the dishwasher, occasionally drive a car, shop online,
and pay bills. R. 17. The ALJ stated that Groves’ ability to execute these chores indicates an
ability to perform work-related functions. Id. This finding was not erroneous. See Owens v.
Comm’r of Soc. Sec., Civ. No. 11-267, 2011 U.S. Dist. LEXIS 154068, at *24-25 (S.D. Ohio
Dec. 6, 2011) (affirming an ALJ’s decision to devalue a plaintiff’s subjective complaints of pain
in light of plaintiff’s ability to cook simple meals, wash dishes, grocery shop for himself, fold
laundry and place it in and take it out of the machine, make his bed, clean his room, dust, and
watch his friends’ children including feeding and dressing them).
The ALJ also doubted Groves’ credibility because Dr. Carol Paris indicated that Groves
was non-compliant with certain medications, thus increasing the likelihood that her symptoms
were not as limiting as she alleged. R. 17, 203. As a defense, Groves points to a medical record
submitted by her therapist, Patricia Murphy, which indicates that she avoids taking pills due to a
fear of addiction because her mother, father and brother are addicts. ECF No. 14 at 19; R. 210.
However, on that same report, Ms. Murphy specifically noted that Groves was not an addict and
used percocet and methadone as prescribed. R. 210. Regardless, Groves’ fear of addiction does
not justify her selective refusal to take certain medications as prescribed. The ALJ acted within
his discretion in partially discrediting Groves’ testimony regarding the severity of her symptoms
because of her non-compliance taking certain medications. See McCartney v. Apfel, 28 Fed.
Appx. 277, 280 (4th Cir. 2002) (“[Plaintiff’s] symptoms are not credible because he refused to
increase the dosage of his medication.”); Sturtevant v. Comm’r, Civ. No. SAG-11-2145, 2013
U.S. Dist. LEXIS 3991, at *4-5 (D. Md. Jan. 10, 2013) (“[D]espite allegations of disabling back
pain, [Plaintiff] was only taking low dose medications on a sporadic basis,” thus the ALJ acted

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within his discretion in determining that the plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms are not credible to the extent they are
inconsistent with the . . . residual functional capacity assessment.”).
Next, Groves asserts that the ALJ must not have based the RFC on medical evidence
because “the DDS consultant made no findings as to Ms. Groves’ functional limitations and the
ALJ rejected Dr. Szkotnicki’s opinion.” ECF No. 14 at 20. “In making an RFC finding, the ALJ
is under an obligation to ‘include a narrative discussion describing how the evidence supports
each conclusion, citing specific medical facts and non-medical evidence.’” Lehman v. Astrue,
931 F. Supp. 2d 682, 695 (D. Md. 2013) (quoting SSR 96–8p). Here, the ALJ found that Groves
had the RFC to perform sedentary, unskilled work, with the option to alternate between sitting
and standing, with limited dominant-hand usage. R. 16. The ALJ based Groves’ RFC on a
myriad of treatment notes, radiology reports, medical source opinions and testimony from
Groves herself. R. 15-18. The ALJ relied on treatment notes from Shah Associates in
concluding that Groves had a history of back, neck, and hip pain, which was addressed with
Percocet and methadone. R. 17, 188. The ALJ also placed weight on two MRIs taken in April
2009 that showed multilevel degenerative disc disease in Groves’ lumbar spine and disc bulges
in her cervical spine. R. 17, 115, 116. Because of this evidence, the ALJ fashioned an RFC that
limited Groves to sedentary, unskilled work. Her sit/stand option is appropriate because she
reported that she could walk and stand for 15 minutes and sit for 30 minutes at a time. R. 298.
Ms. Constantine confirmed that Groves could sit continuously for 30 minutes and for four hours
during and 8-hour workday and could stand for 15 minutes and for four hours during an 8-hour
workday. R. 331-32. The ALJ also limited Groves’ dominant-hand usage after she repeatedly
reported numbness and pain in that hand. R. 284, 286, 288. Substantial evidence supports the

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ALJ’s RFC determination.
Finally, Groves argues that the testimony of the VE confirms that she cannot maintain
regular employment due to her mental and physical impairments. ECF No. 14 at 20. “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 this particular claimant can perform.” France v.
Apfel, 87 F. Supp. 2d 484, 490 (D. Md. 2000) (citation and quotation marks omitted). Thus, in
order for a vocational expert’s opinion to be relevant or helpful, “it must be in response to proper
hypothetical questions which fairly set out all of the claimant’s impairments.” Id. “[T]he ALJ is
afforded great latitude in posing hypothetical questions . . . and need only pose those that are
based on substantial evidence and accurately reflect the plaintiff's limitations.” Id. (citation and
quotations marks omitted). “Therefore, based on his or her evaluation of the evidence, an ALJ is
free to accept or reject restrictions included in hypothetical questions suggested by a claimant’s
counsel, even though these considerations are more restrictive than those suggested by the ALJ.”
Id. Here, the VE testified that a person with a marked limitation in her ability to maintain
attention and concentration, who would miss at least three days of work per month, and who
would need eight 10 minute breaks per day would not be employable. R. 40-41. Groves,
without citing to any evidence in the record, argues that the facts included in this hypothetical
question are supported by records from Drs. Szkotnicki, Paris and Merrion. But, as explained
earlier, the ALJ appropriately omitted various extreme limitations, which were not supported by
objective medical evidence, when fashioning the RFC. The ALJ appropriately relied on the
VE’s testimony that a significant number of sedentary, unskilled jobs, with a sit/stand option and
a limited dominant-hand usage, exist in the national and local economies to conclude that Groves
was not disabled within the meaning of the Act.

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5. Conclusion.
Substantial evidence supports the ALJ’s conclusion that Groves was not disabled under
the Act. Groves’ motion for summary judgment is denied and the Commissioner’s motion for
summary judgment is granted.

Date: March 6, 2014

/S_______
JILLYN K. SCHULZE
United States Magistrate Judge

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