Svalde v. Colvin
Filing
12
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 8/29/2016. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
ARMAND SVALDE,1
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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 15-2093
MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Armand Svalde (or Armands Svalbe) seeks judicial review under 42 U.S.C.
§ 405(g) of a final decision of the Commissioner of Social Security (“Defendant” or the
“Commissioner”) denying his application for disability insurance benefits (“DIB”) under Title II
of the Social Security Act. Before the Court are Plaintiff’s Motion for Summary Judgment (ECF
No. 10) and Defendant’s Motion for Summary Judgment (ECF No. 11).2 Plaintiff contends that
the administrative record does not contain substantial evidence to support the Commissioner’s
decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that
follow, Defendant’s Motion for Summary Judgment (ECF No. 11) is GRANTED, Plaintiff’s
1
Although Plaintiff’s name appears on the docket and in the complaint (ECF No. 1) as “Armand
Svalde,” his name appears throughout the administrative transcript (ECF No. 7) as “Armands
Svalbe.”
2
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
Motion for Summary Judgment (ECF No. 10) is DENIED, and the Commissioner’s final
decision is AFFIRMED.
I
Background
Plaintiff was born in 1980, has a high-school education, and previously worked as a
driver/courier, cashier, cashier/checker, stock clerk, and sales attendant. R. at 21, 143, 147.
Plaintiff filed an application for DIB on February 9, 2012, alleging disability beginning on
November 1, 2011, due to Crohn’s disease, diabetes, hepatitis C, depression, ADHD, anxiety,
hypercholesterolemia, and psoriasis.
R. at 127-28, 143, 146.
The Commissioner denied
Plaintiff’s application initially and again on reconsideration, so Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). R. at 46-71, 74-81. On February 6, 2014, ALJ
Tom Duann held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 2845. On February 24, 2014, ALJ Irving A. Pianin issued a decision finding Plaintiff not disabled
from the alleged onset date of disability of November 1, 2011, through the date of the decision.
R. at 8-27. Plaintiff sought review of this decision by the Appeals Council, which denied
Plaintiff’s request for review on May 18, 2015. R. at 2-7. The ALJ’s decision thus became the
final decision of the Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S.
103, 106-07, 120 S. Ct. 2080, 2083 (2000).
On July 16, 2015, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
The case subsequently was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.
2
II
Summary of Evidence
The Court reviews here and in Part VI below Plaintiff’s relevant medical evidence.
A.
Cheryl H. Jaworski, M.D.
Cheryl H. Jaworski, M.D., had been Plaintiff’s treating psychiatrist since May 13, 2011.
R. at 349. On May 13, 2011, Dr. Jaworski’s diagnoses included a GAF score of 55.3 R. at 286.
On December 20, 2011, Plaintiff reported that he was spending most of his day programming
music for a friend and that his medications “definitely allow him to concentrate much better.” R.
at 299. On January 19, 2012, Plaintiff reported that he was “doing better” and that his “anxiety
is much better” and “not really a problem right now.” R. at 300, 320. On March 1, 2012,
Plaintiff reportedly continued to have issues with fatigue and felt that he could not work a full
day. R. at 301, 321. On March 16, 2012, Plaintiff reported that his mood had been worsening in
the previous two weeks, and he was feeling sadder and more anxious in general. R. at 302, 322.
He was not doing much at home besides lying in bed and watching television. R. at 302, 322.
On April 13, 2012, Plaintiff reported that his symptoms of depression were “definitely
better” but that his anxiety was worse. R. at 323. He was sleeping about 10 hours per day. R. at
323. His motivation and energy were a little better, and he was a little less unstable. R. at 323.
Plaintiff did not believe that a decrease in his medication dosage had worsened his focus and
3
The GAF, or global assessment of functioning, scale rates psychological, social, and
occupational functioning; it is divided into ten ranges of functioning. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) [hereinafter
DSM-IV-TR]. A GAF rating between 51 and 60 indicates moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. at
34. The current edition of the manual eliminated the GAF scale for reasons including “its
conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its
descriptors) and questionable psychometrics in routine practice.” Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013).
3
attention much up to that point. R. at 323. On May 11, 2012, Plaintiff reported that his anxiety
had decreased from his last visit, but he continued “to feel anxious about everything all the
time.” R. at 324. His depression was under control, and his motivation was “a little improved.”
R. at 324. Plaintiff felt that his focus and attention were “sort of OK.” R. at 324.
On June 8, 2012, Plaintiff reported that his anxiety was “somewhat better” since an
increase in his medication dosage.
R. at 325.
His anxiety was “still there, but there’s
improvement.” R. at 325. He denied having depression, and his energy, motivation, and
irritability were better than before. R. at 325. His attention and focus were “a little bit” better on
his medication regimen, but the “effect still doesn’t last much more than 6 hours.” R. at 325.
On June 28, 2012, Plaintiff reported that his “anxiety now sometimes spikes to 7/10 ‘for
no reason.’” R. at 325. He was “more aware of some sadness again,” and he described his
anxiety as generalized. R. at 326.
On July 24, 2012, Plaintiff reported no problems with sadness and that his anxiety was
“low-level.” R. at 327. On August 21, 2012, Plaintiff reported that the effects of his medications
lasted six or seven hours. R. at 328. On September 18, 2012, Plaintiff reported that his focus
and attention were “pretty good for the bulk of the day.” R. at 329, 353. On November 2, 2012,
Plaintiff reported that his “general mood has been fine” and that his focus and attention were
“pretty good.” R. at 355.
On January 4, 2013, Plaintiff reported that his mood was “pretty good” and that his
overall mood had been fine. R. at 356. Plaintiff’s depression and anxiety symptoms were
“under pretty good control,” and his attention and focus were good with his current stimulants.
R. at 356. His energy level was better, and his motivation was “OK.” R. at 356. Plaintiff’s
orientation, judgment and insight, and recent and remote memory were grossly intact. R. at 356.
4
He also reported improvement with his current treatment program. R. at 357. Dr. Jaworski
noted that Plaintiff was seeing a psychotherapist at the Community Counseling Center to work
on his OCD-related issues, which Plaintiff said was helpful. R. at 357.
On April 5, 2013, Plaintiff reported being a little more anxious and more depressed since
the previous visit. R. at 358. Plaintiff also reported that his mood had not been as good over the
last two months or so and went “up and down.” R. at 358. Plaintiff was not able to find any
work and “kind of ‘gave up’ after a while.” R. at 358. His mood was more anxious and sad,
“but not every day.” R. at 358. Plaintiff also reported that his focus and attention were best in
the morning with his stimulants, but he admitted that he did not have much structure in his day,
exacerbating his problems. R. at 359. He tried to do household chores, but was inconsistent
because of “feeling crappy sometimes” and not being physically up to it. R. at 359.
The ALJ reviewed in his decision Dr. Jaworski’s opinion on April 8, 2013:
On April 8, 2013, Dr. Jaworski opined the following: [Plaintiff] has deficiencies
of concentration, persistence, or pace, that result in frequent failure to complete
tasks in a timely manner (in work settings or elsewhere); [Plaintiff] has repeated
episodes of deterioration or decompensation in work or work-like setting [sic] that
cause [Plaintiff] to withdraw from the situation or experience exacerbation of
signs and symptoms (which may include deterioration of adaptive functioning);
and [Plaintiff] has mostly moderate and marked limitations regarding his ability to
work.
R. at 20; see R. at 349-52. According to Dr. Jaworski, Plaintiff was markedly limited in the
ability to (1) perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; (2) interact appropriately with the general public; and to (3) travel
in unfamiliar places or use public transportation. R. at 351-52. Dr. Jaworski explained her
opinion: “These ratings are based on [patient’s] report of his function during medication
evaluation [and] follow-up [appointments]. I have not observed his behavior directly in the
5
workplace, nor do I have access to evaluations of his performance by his previous employers.”
R. at 352.
On June 7, 2013, Plaintiff reported that “maybe the depression is a little better.” R. at
360. He noted fewer days of sadness than before, and he seemed to have less anxiety. R. at 360.
His energy was still low, but his motivation had improved; his daily activities were not as
difficult as before. R. at 360. Plaintiff also reported that he had been “working on his music a
lot” and that he “felt more creative lately.” R. at 361. He had not followed through, however,
with volunteer jobs at the animal shelter and Meals on Wheels because “it’s hard to make myself
do it.” R. at 361. On May 10, 2013, Plaintiff reported little relief from his symptoms of
depression and anxiety. R. at 362.
On July 12, 2013, Plaintiff reported that his mood was “OK most of the time.” R. at 364.
His energy was “a little better,” and his motivation was “OK now.” R. at 364. Dr. Jaworski
noted that Plaintiff’s attention and concentration were intact during the session. R. at 364.
Plaintiff also reported that his wife had added some structure to his daily routine, giving him
specific chores for specific days, which helped him stay on track and be more productive. R. at
365.
On August 23, 2013, Plaintiff reported that he was “doing OK” and that his “mood has
been OK most of the time.” R. at 366. He denied having depression and reported that his
anxiety was “actually a little less than when last seen.” R. at 366. Plaintiff’s motivation was
“OK,” and his focus and attention were “OK for most of the day” with his current medications.
R. at 366. He continued to have more structure in his daily routine with his wife’s help. R. at
367.
6
On November 14, 2013, Plaintiff reported that he thought “things have been pretty
stable.” R. at 368. His mood continued to be fine “more days than not.” R. at 368. He denied
having depression and reported that his anxiety remained unchanged but had improved. R. at
368. His energy, motivation, attention, and focus remained the same from his previous visit. R.
at 368. Dr. Jaworksi noted that Plaintiff’s attention and concentration were good during the
appointment, but that his judgment and insight were only fair. R. at 368. Plaintiff described his
symptoms as being in good control while on his current medication regimen. R. at 369. Plaintiff
was changing the frequency of his visits to his psychotherapist from every two to three weeks to
every month because he felt “things are stabilizing” and “we are running out of stuff to talk
about.” R. at 369.
B.
State Agency Medical Consultants
On May 17, 2012, a state agency consultant, Lawrence Annis, Ph.D., using the
psychiatric review technique (“PRT”) under 20 C.F.R. § 404.1520a, evaluated Plaintiff’s mental
impairments under Listings 12.02 and 12.04 relating to organic mental disorders and affective
disorders (R. at 49-50). See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.02, 12.04. Dr. Annis
opined that, under paragraph B of the applicable listing, Plaintiff’s mental impairments caused
him to experience (1) moderate restriction in activities of daily living; (2) moderate difficulties in
maintaining social functioning; (3) moderate difficulties in maintaining concentration,
persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at
50. Dr. Annis did not find evidence to establish the presence of the criteria under paragraph C of
the applicable listing. R. at 50. Dr. Annis thus assessed Plaintiff’s mental residual functional
capacity (“RFC”) (R. at 52-55) and opined that he was moderately limited in his ability to
(1) understand, remember, and carry out detailed instructions; (2) maintain attention and
7
concentration for extended periods; (3) complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; (4) interact appropriately with the general
public; (5) get along with co-workers or peers without distracting them or exhibiting behavioral
extremes; (6) maintain socially appropriate behavior and to adhere to basic standards of neatness
and cleanliness; and to (7) respond appropriately to changes in the work setting. Plaintiff
otherwise was not significantly limited. R. at 53-54.
On June 20, 2012, another state agency consultant, A. Serpick, M.D., assessed Plaintiff’s
physical RFC. R. at 51-52. Dr. Serpick opined that Plaintiff could (1) lift and/or carry fifty
pounds occasionally and twenty-five pounds frequently; (2) stand and/or walk for a total of about
six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and
(4) perform unlimited pushing and/or pulling. R. at 52. Plaintiff had no postural, manipulative,
visual, communicative, or environmental limitations. R. at 52. On November 30, 2012, another
state agency consultant, W. Hakkarinen, M.D., expressed the same opinion about Plaintiff’s
physical RFC. R. at 64-65.
On December 21, 2012, another state agency consultant, Maurice Prout, Ph.D., again
used the PRT to evaluate Plaintiff’s mental impairments under Listings 12.02 and 12.04. R. at
62-63. Dr. Prout opined that, under paragraph B of the applicable listing, Plaintiff’s mental
impairments caused him to experience (1) moderate restriction in activities of daily living;
(2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in
maintaining concentration, persistence, or pace; and (4) no episodes of decompensation of
extended duration. R. at 62-63. Dr. Prout did not find evidence to establish the presence of the
criteria under paragraph C of the applicable listing. R. at 63. Dr. Prout thus assessed Plaintiff’s
8
mental RFC (R. at 65-68) and opined that he was moderately limited in his ability to
(1) understand, remember, and carry out detailed instructions; (2) maintain attention and
concentration for extended periods; (3) complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; (4) interact appropriately with the general
public; (5) get along with co-workers or peers without distracting them or exhibiting behavioral
extremes; (6) maintain socially appropriate behavior and to adhere to basic standards of neatness
and cleanliness; and to (7) respond appropriately to changes in the work setting. Plaintiff
otherwise was not significantly limited. R. at 66-67.
Both Drs. Annis and Prout expressed the same opinions about Plaintiff’s sustained
concentration and persistence limitations:
[Plaintiff] should be mentally able to sustain concentration and persist at simple
and repetitive tasks within physical tolerances and skill levels for at least two
hours at a time through an 8 hour workday. Additional supervision may be
required when working on multi-step assignments. There may be occasions
during which [Plaintiff] experiences some decrease in concentration, but he can
attend to and complete simple tasks in routine settings as needed. [Plaintiff] is
mentally able to understand and follow a schedule. Lack of desire or motivation
may contribute to reduced performance in this area.
R. at 53, 66. They further opined that Plaintiff
should be mentally able to perform simple, routine, repetitive tasks in settings
with low social demands and which are not fast paced or quota driven. Functional
restrictions beyond levels assessed above are not considered attributable to
[Plaintiff’s] mental condition, as reflected in the objective medical evidence in
file. He may be mentally able to perform tasks at higher levels despite the
moderate limitations noted above.
R. at 54, 67.
9
C.
Community Counseling Center
At his initial appointment at the Community Counseling Center on September 18, 2012,
Plaintiff’s psychotherapist diagnosed him with obsessive-compulsive disorder and a GAF rating
of 62.4 R. at 345. Progress notes from November 6, 2012, to November 7, 2013, indicate that,
although he appeared depressed, Plaintiff had no problems with memory or his attention span.
R. at 370-81. There was no evidence of psychosis or impaired judgment. R. at 370-81. During
this period, Plaintiff’s psychological symptoms somewhat improved, and his progress was fair to
good. R. at 370-81.
D.
Hearing Testimony
1.
Plaintiff’s Testimony
The ALJ reviewed Plaintiff’s testimony in his decision:
At the hearing, [Plaintiff] complained of reduced concentration,
persistence, and pace. He also complained of depression, diabetes mellitus (DM),
and fatigue. [Plaintiff] testified that he is not reliable. He testified that he takes
certain medications for his alleged mental impairments, and these medications
help somewhat. [Plaintiff] testified that he has not had any hospitalizations or
emergency room visits for his alleged mental impairments, and he has not seen a
therapist since last year. He also testified that he is currently not working, and he
last worked in November 2011.
R. at 17; see R. at 32-42.
2.
VE Testimony
The VE testified that a hypothetical individual with Plaintiff’s same age, education, and
work experience with the RFC outlined below in Part III could perform Plaintiff’s past relevant
4
A GAF rating between 61 and 70 indicates that the individual has “[s]ome mild symptoms
(e.g., depressed mood and mild insomnia) [or] some difficulty in social, occupational, or school
functioning (e.g., occasional truancy, or theft within the household), but [is] generally
functioning pretty well [and] has some meaningful interpersonal relationships.” DSM-IV-TR,
supra note 3, at 34.
10
work as a stock clerk and also could perform the unskilled, medium5 jobs of packager or cleaner.
R. at 21, 43-44.
An individual unable to complete a normal workday and to interact
appropriately with co-workers, supervisors, or the public would not be able to perform any jobs.
R. at 44. If Plaintiff’s testimony that he would not be able to focus and concentrate on the task at
hand and would not be reliable in attending work were credible, he could not perform any fulltime work. R. at 44. According to the VE, her testimony was consistent with the Dictionary of
Occupational Titles.6 R. at 44.
III
Summary of ALJ’s Decision
On February 24, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of November 1, 2011; and (2) had an
impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was able to perform his past relevant work as a stock clerk; and
(5) could perform other work in the national economy, such as a packer or cleaner. R. at 13-23.
5
“Unskilled work is work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). “Medium work involves
lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up
to 25 pounds.” Id. § 404.1567(c).
6
“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d
148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 404.1566(d)(1). “Information contained in the
[Dictionary of Occupational Titles] is not conclusive evidence of the existence of jobs in the
national economy; however, it can be used to establish a rebuttable presumption.” English v.
Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
11
The ALJ thus found that he was not disabled from November 1, 2011, through the date of the
decision. R. at 23.
In so finding, the ALJ found that, with regard to concentration, persistence, or pace,
[Plaintiff] has moderate difficulties. In a function report from March 21, 2012,
[Plaintiff] reported that he has difficulty focusing on tasks; he needs reminders to
take care of his personal needs and grooming; he needs reminders to take his
medicine; he can pay attention for 5 minutes; he does not finish what he starts; he
follows written and spoken instructions poorly; he does not handle stress well at
all; and he handles changes in his routine very poorly [R. at 154-61]. However,
[Plaintiff] also reported that he drives; he goes shopping in stores; he is able to
pay bills; he is able to count change; he is able to handle a savings account; he is
able to use a checkbook/money orders; and he has not noticed any unusual
behavior or fears [R. at 154-161]. Furthermore, [Plaintiff] testified at the hearing
that he plays the bass guitar; he writes music; he uses the computer; he checks his
email; he uses Facebook; he watches television; he cleans; and he handles his own
money [R. at 32-42].
R. at 15.
The ALJ found that Plaintiff had the RFC
to perform medium work as defined in 20 CFR 404.1567(c), except for the
following: [Plaintiff] can have only occasional contact with coworkers,
supervisors, and/or the general public, due to limitations in social functioning; and
[Plaintiff] can perform only simple, routine, repetitive tasks, due to limitations in
concentration, persistence, or pace.
R. at 16.
The ALJ also considered Plaintiff’s credibility and found that his “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [his] statements concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” R. at 17.
The ALJ gave
little weight to Dr. Cheryl H. Jaworski’s opinion in [R. at 349-52], because it is
not supported by the evidence of record as a whole, and because it is not
consistent with the evidence of record as a whole (SSR 96-6p). . . . Dr. Cheryl H.
Jaworski’s opinion in [R. at 349-52] is not consistent with the progress notes from
12
Dr. Cheryl H. Jaworski, [Plaintiff’s] treating psychiatrist [R. at 283-307, 320-30,
353-69], and the progress notes from [Plaintiff’s] therapist at the Community
Counseling Center (CCC) [R. at 338-45, 370-81]. In addition, [Plaintiff] has not
had any hospitalizations, emergency room visits, or crisis center visits, for his
psychiatric/psychological impairments [R. at 32-42]. Furthermore, [Plaintiff] has
global assessment of functioning (GAF) scores ranging from 55-62, which mean
only mild/moderate symptoms [R. at 283-307, 338-45].
R. at 20.
The ALJ also reviewed Dr. Jaworski’s progress notes:
Progress notes from Dr. Cheryl H. Jaworski, [Plaintiff’s] treating psychiatrist,
from August 23, 2013, indicate that [Plaintiff] was doing “okay” [R. at 366].
Furthermore, progress notes from Dr. Jaworski from November 14, 2013, indicate
that “things have been pretty stable,” according to [Plaintiff] [R. at 368]. Overall,
the progress notes in [R. at 353-69] indicate that [Plaintiff’s] mental health
condition was improving, despite his “ups and downs.”
R. at 18.
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”
42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
13
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).7
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
7
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
14
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.
Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
15
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
16
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
VI
Discussion
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security
Ruling8 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-13,
ECF No. 10-1 (citing, inter alia, Fleming v. Barnhart, 284 F. Supp. 2d 256, 271-72 (D. Md.
2003)).
Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of his ability to perform the physical and mental demands of work. Id. at 5-6. In
particular, he contends that, although the ALJ found that he had moderate difficulties with regard
to concentration, persistence, or pace, the ALJ failed to include any limitation on concentration,
persistence, or pace in the RFC assessment, instead limiting Plaintiff to simple, routine, and
repetitive tasks (R. at 16). Id. at 6. Plaintiff further asserts that the ALJ failed to evaluate
properly the opinions of Dr. Jaworski, his treating psychiatrist. Id. at 6-13. Plaintiff also
contends that substantial evidence does not support the ALJ’s determination that he was capable
of performing his past relevant work as a stock clerk. Id. at 13-15. For the reasons discussed
below, Plaintiff’s assertions are unavailing.
8
Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
17
A.
Plaintiff’s Moderate Limitations in Maintaining Concentration, Persistence, or Pace
SSR 96-8p explains how adjudicators should assess RFC and instructs that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform
them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, ___, No. 15-1098, 2016 WL
3349355, at *9-10 (4th Cir. June 16, 2016) (remanding because ALJ erred in not determining
claimant’s RFC using function-by-function analysis; ALJ erroneously expressed claimant’s RFC
18
first and then concluded that limitations caused by claimant’s impairments were consistent with
that RFC).
Plaintiff contends that, in assessing his RFC, the ALJ failed to consider adequately his
moderate difficulties in maintaining concentration, persistence, or pace, contrary to Mascio.
Pl.’s Mem. Supp. Mot. Summ. J. 6, ECF No. 10-1. In Mascio, the Fourth Circuit held that “an
ALJ does not account ‘for a claimant’s limitations in concentration, persistence, and pace by
restricting the hypothetical question to simple, routine tasks or unskilled work.’” Mascio, 780
F.3d at 638 (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)).
“[T]he ability to perform simple tasks differs from the ability to stay on task. Only the latter
limitation would account for a claimant’s limitation in concentration, persistence, or pace.” Id.
The court in Mascio remanded the case for the ALJ to explain why the claimant’s moderate
limitation in concentration, persistence, or pace at step three did not translate into a limitation in
the claimant’s RFC. Id. In other words, “[p]ursuant to Mascio, once an ALJ has made a step
three finding that a claimant suffers from moderate difficulties in concentration, persistence, or
pace, the ALJ must either include a corresponding limitation in her RFC assessment, or explain
why no such limitation is necessary.” Talmo v. Comm’r, Soc. Sec., Civil Case No. ELH-142214, 2015 WL 2395108, at *3 (D. Md. May 19, 2015), report and recommendation adopted (D.
Md. June 5, 2015).
“The Social Security Administration has promulgated regulations containing ‘listings of
physical and mental impairments which, if met, are conclusive on the issue of disability.’ A
claimant is entitled to a conclusive presumption that he is impaired if he can show that his
condition ‘meets or equals the listed impairments.’” Radford, 734 F.3d at 291 (citation omitted);
see 20 C.F.R. pt. 404, subpt. P, app. 1. In addition to the five-step analysis discussed above in
19
Part IV and outlined in 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner has promulgated
additional regulations governing evaluations of the severity of mental impairments. 20 C.F.R.
§§ 404.1520a, 416.920a. These regulations require application of a psychiatric review technique
at the second and third steps of the five-step framework, Schmidt v. Astrue, 496 F.3d 833, 844
n.4 (7th Cir. 2007), and at each level of administrative review. 20 C.F.R. §§ 404.1520a(a),
416.920a(a). This technique requires the reviewing authority to determine first whether the
claimant has a “medically determinable mental impairment.”
416.920a(b)(1).
Id. §§ 404.1520a(b)(1),
If the claimant is found to have such an impairment, then the reviewing
authority must “rate the degree of functional limitation resulting from the impairment(s) in
accordance with paragraph (c),” id. §§ 404.1520a(b)(2), 416.920a(b)(2), which specifies four
broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation.
Id. §§ 404.1520a(c)(3),
416.920a(c)(3). According to the regulations, if the degree of limitation in each of the first three
areas is rated “mild” or better, and no episodes of decompensation are identified, then the
reviewing authority generally will conclude that the claimant’s mental impairment is not
“severe” and will deny benefits. Id. §§ 404.1520a(d)(1), 416.920a(d)(1). If the claimant’s
mental impairment is severe, then the reviewing authority will first compare the relevant medical
findings and the functional limitation ratings to the criteria of listed mental disorders in order to
determine whether the impairment meets or is equivalent in severity to any listed mental
disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). If so, then the claimant will be found to be
disabled.
If not, the reviewing authority will then assess the claimant’s RFC.
§§ 404.1520a(d)(3), 416.920a(d)(3).
20
Id.
“The ALJ’s decision must show the significant history and medical findings considered
and must include a specific finding as to the degree of limitation in each of the four functional
areas.” Felton-Miller v. Astrue, 459 F. App’x 226, 231 (4th Cir. 2011) (per curiam) (citing 20
C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4)). With regard to the four functional areas, which
correspond to the paragraph B criteria of the listings for mental disorders, “[a]ctivities of daily
living include adaptive activities such as cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring appropriately for [the claimant’s]
grooming and hygiene, using telephones and directories, and using a post office.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.00(C)(1). “In the context of [the claimant’s] overall situation, [the
Commissioner assesses] the quality of these activities by their independence, appropriateness,
effectiveness, and sustainability. [The Commissioner] will determine the extent to which [the
claimant is] capable of initiating and participating in activities independent of supervision or
direction.” Id. Moreover, “[s]ocial functioning refers to [the claimant’s] capacity to interact
independently, appropriately, effectively, and on a sustained basis with other individuals. Social
functioning includes the ability to get along with others, such as family members, friends,
neighbors, grocery clerks, landlords, or bus drivers.”
Id. § 12.00(C)(2).
Further,
“[c]oncentration, persistence, or pace refers to the ability to sustain focused attention and
concentration sufficiently long to permit the timely and appropriate completion of tasks
commonly found in work settings.”
Id. § 12.00(C)(3).
“On mental status examinations,
concentration is assessed by tasks such as having [the claimant] subtract serial sevens or serial
threes from 100. In psychological tests of intelligence or memory, concentration is assessed
through tasks requiring short-term memory or through tasks that must be completed within
established time limits.”
Id.
Finally, “[e]pisodes of decompensation are exacerbations or
21
temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as
manifested by difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace.” Id. § 12.00(C)(4). “Episodes
of decompensation may be demonstrated by an exacerbation in symptoms or signs that would
ordinarily require increased treatment or a less stressful situation (or a combination of the two).”
Id. Episodes of decompensation may be inferred from “medical records showing significant
alteration in medication; or documentation of the need for a more structured psychological
support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and
directing household); or other relevant information in the record about the existence, severity,
and duration of the episode.” Id. “The term repeated episodes of decompensation, each of
extended duration in these listings means three episodes within 1 year, or an average of once
every 4 months, each lasting for at least 2 weeks.” Id.
Here, the ALJ found that Plaintiff “can perform only simple, routine, repetitive tasks, due
to limitations in concentration, persistence, or pace.” R. at 16. “[B]ecause [the ALJ] explicitly
related his RFC limitation of [‘simple, routine, repetitive tasks’] to [Plaintiff’s] difficulties in
concentration, persistence, or pace, there is no internal inconsistency in the ALJ’s decision.”
Geisler v. Comm’r, Soc. Sec. Admin., Civil No. SAG-14-2857, 2015 WL 4485459, at *5 (D. Md.
July 21, 2015). Plaintiff’s contention that remand under Mascio is warranted thus is unavailing.
B.
ALJ’s Consideration of Dr. Jaworski’s Opinion
Plaintiff next contends that the ALJ erred in his consideration of Dr. Jaworski’s April
2013 opinion (R. at 349-52). Pl.’s Mem. Supp. Mot. Summ. J. 6-13, ECF No. 10-1. In this
regard, the Fourth Circuit reiterated the following standard for considering medical opinions.
Dunn v. Colvin, 607 F. App’x 264, 267-68 (4th Cir. 2015). When evaluating medical opinions,
22
the ALJ should consider “(1) whether the physician has examined the applicant, (2) the treatment
relationship between the physician and the 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.” Johnson, 434 F.3d at 654; see 20 C.F.R. § 404.1527. “An ALJ’s determination as to
the weight to be assigned to a medical opinion generally will not be disturbed absent some
indication that the ALJ has dredged up ‘specious inconsistencies,’” Dunn, 607 F. App’x at 267
(quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)), “or has failed to give a
sufficient reason for the weight afforded a particular opinion,” id. (citing 20 C.F.R.
§ 404.1527(d) (1998)); see 20 C.F.R. § 404.1527(c).
A treating source’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, 76 F.3d at 590. In
other words, “a treating physician’s opinion is to be accorded comparatively less weight if it is
based on the physician’s limited knowledge of the applicant’s condition or conflicts with the
weight of the evidence.” Meyer v. Colvin, 754 F.3d 251, 256 (4th Cir. 2014) (citing Craig, 76
F.3d at 590; 20 C.F.R. § 404.1527(c)). Moreover, “the testimony of a non-examining physician
can be relied upon when it is consistent with the record. Furthermore, if the medical expert
testimony from examining or treating physicians goes both ways, a determination coming down
23
on the side of the non-examining, non-treating physician should stand.” Smith, 795 F.2d at 346
(citation omitted). 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 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 id. § 404.1527(c)(3).
Additionally, the more consistent the opinion is with the record as a whole, the more weight the
ALJ will give to it. See id. § 404.1527(c)(4); see also Dunn, 607 F. App’x at 268.
“Because individuals with a mental illness may experience periods during which they are
relatively symptom-free, their level of functioning can vary significantly over time.” Mabry v.
Colvin, 815 F.3d 386, 392 (8th Cir. 2016) (citing 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(D)).
Here, in giving “little weight” to Dr. Jaworski’s opinion (R. at 20), the ALJ considered the
longitudinal evidence and noted that, according to the doctor’s notes after her April 2013
opinion, Plaintiff was doing “okay” in August 2013 and that “things [were] pretty stable” in
November 2013 (R. at 18, 366, 368). Although Plaintiff maintains that the ALJ “failed to
identify a single inconsistency” (Pl.’s Mem. Supp. Mot. Summ. J. 12, ECF No. 10-1), “there is
no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.”
Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395
F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). Dr. Jaworski’s progress notes before her April
2013 opinion indicate that, in December 2011 and January 2012, Plaintiff’s medications were
24
helping him concentrate better. His depression reportedly was better by April 2012, and his
anxiety had improved in July 2012.
In August 2012, the therapeutic effect of Plaintiff’s
medications lasted six or seven hours. In September and November 2012, Plaintiff’s focus and
attention were “pretty good.” In January 2013, Plaintiff’s depression and anxiety were well
controlled, and his medications continued to help maintain his attention and focus. Although
Plaintiff became more anxious and depressed in April 2013, by August 2013 he had denied being
depressed, and his anxiety had improved.
Plaintiff reported that his symptoms were well
controlled in November 2013. Further, progress notes from Plaintiff’s psychotherapist at the
Community Counseling Center from September 2012 to November 2013 indicated no problems
with memory or his attention span despite his depression, as well as a GAF rating consistent with
mild symptoms and good functioning. In any event, Plaintiff “has failed to point to any specific
piece of evidence not considered by the Commissioner that might have changed the outcome of
his disability claim.” Id. “[I]f the decision ‘is overwhelmingly supported by the record though
the agency’s original opinion failed to marshal that support, then remanding is a waste of time.’”
Bishop, 583 F. App’x at 67 (quoting Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (Posner,
J.)); cf. Monroe, 826 F.3d at ___, 2016 WL 3349355, at *11 (remanding because, inter alia,
ALJ’s conclusory analysis of opinion evidence as being supported or unsupported by “objective
evidence,” without more, rendered court unable to undertake meaningful substantial-evidence
review).
Plaintiff’s assertion that the ALJ, in weighing Dr. Jaworski’s opinion, erred in
considering his lack of hospitalizations, emergency room visits, or crisis center visits also is
unavailing. See Maddox v. Comm’r, Soc. Sec. Admin., Civil No. SAG-12-3125, 2013 WL
4046258, at *2 (D. Md. Aug. 6, 2013) (“[The claimant] argues that the ALJ improperly
25
discounted Dr. Yossif’s opinion because of a lack of treatment records and because [the
claimant] had never been hospitalized for her psychiatric issues. Both assertions lack merit. The
ALJ appropriately found that Dr. Yossif’s opinion was contradicted by the mental evaluations he
and his staff conducted. Further, the ALJ did not require hospitalization to find a mental
disability. He merely noted that one would expect hospitalization if [the claimant’s] mental
health was as severely deficient as Dr. Yossif indicated. Thus, I find that the ALJ’s discounting
of Dr. Yossif’s opinion is based on substantial evidence.”).
In short, substantial evidence
supports the ALJ’s finding that Dr. Jaworski’s opinion regarding Plaintiff’s functional limitations
was not consistent with either her progress notes or the progress notes from the Community
Counseling Center. See Cline v. Colvin, 771 F.3d 1098, 1104 (8th Cir. 2014); Wildman v.
Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (concluding that ALJ properly discounted treating
physician’s opinion as conclusory because it consisted of three checklist forms, cited no medical
evidence, and provided little to no elaboration); Burch v. Apfel, 9 F. App’x 255, 259 (4th Cir.
2001) (per curiam) (ALJ did not err in giving physician’s opinion little weight where physician’s
opinion was not consistent with her own progress notes); Craig, 76 F.3d at 590 (upholding ALJ’s
rejection of treating physician’s opinion because record contained persuasive contradictory
evidence and because treating physician’s own notes contradicted his opinion).
Finally, Plaintiff contends that the ALJ failed to consider the factors cited in Johnson and
in 20 C.F.R. § 404.1527(c) when not affording a treating source’s opinion controlling weight.
Pl.’s Mem. Supp. Mot. Summ. J. 10-12, ECF No. 10-1. In this case, however, “[w]hile the ALJ
did not explicitly analyze each of the Johnson factors on the record, the ALJ was clear that he
concluded that [Dr. Jaworski’s] opinion was not consistent with the record or supported by the
medical evidence, which are appropriate reasons under Johnson” to afford a treating physician’s
26
opinion less than controlling weight. Bishop, 583 F. App’x at 67. Moreover, although Plaintiff
asserts that the ALJ failed to evaluate under SSR 96-2p whether Dr. Jaworski’s opinion should
be given controlling weight, “a finding that a physician’s opinion is inconsistent with the other
substantial evidence in a claimant’s case record is adequate to support a determination that the
opinion is not entitled to controlling weight.” Burger v. Comm’r, Soc. Sec. Admin., Civil No.
SAG-14-1345, 2015 WL 467662, at *3 n.2 (D. Md. Feb. 2, 2015) (citing SSR 96-2p, 1996 WL
374188, at *4 (July 2, 1996)). Thus, for the reasons stated above, Plaintiff’s argument that the
ALJ erred in affording little weight to Dr. Jaworski’s opinion is unavailing.
C.
Plaintiff’s Ability to Perform Past Relevant Work and Other Work
Plaintiff finally asserts that the ALJ erroneously determined that he was capable of
performing his past relevant work as a stock clerk (R. at 21) because the record lacks testimony
from the VE that he was capable of performing such work. Pl.’s Mem. Supp. Mot. Summ. J. 1315, ECF No. 10-1. Plaintiff also contends that, even if the VE had testified that he was capable
of performing his past relevant work as a stock clerk, her testimony would have conflicted with
the Dictionary of Occupational Titles. Id. at 14. As the Commissioner points out, “[h]owever,
the ALJ proceeded to step five finding that there are other jobs existing in the national economy
that [he] could perform. Accordingly, if the Court upholds the ALJ’s finding at step five of the
sequential evaluation, any error at step four is harmless.” Queen v. Astrue, Civil Action No.
TMD 10-3364, 2012 WL 1016822, at *3 (D. Md. Mar. 23, 2012); see Tommasetti v. Astrue, 533
F.3d 1035, 1044 (9th Cir. 2008) (“[A]lthough the ALJ erred at step four in finding that [the
claimant] could perform his past work, this error was harmless because the ALJ properly
concluded as an alternative at step five that he could perform work in the national and regional
economies as a semiconductor assembler.”); Carter v. Comm’r, Soc. Sec., Civil Case No. JKB-
27
14-2581, 2015 WL 2244138, at *2 (D. Md. May 12, 2015) (“Even assuming, without deciding,
that the ALJ’s step four analysis was deficient, the error would be harmless since the ALJ made
alternative step five findings that [the claimant] could perform work as an addresser or order
clerk.”). Because Plaintiff has not disputed the ALJ’s determination at step five, his argument
regarding any error, if any, by the ALJ at step four is unavailing.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct
legal standards here.
Thus, Defendant’s Motion for Summary Judgment is GRANTED,
Plaintiff’s Motion for Summary Judgment is DENIED, and the Commissioner’s final decision is
AFFIRMED.
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 11) is
GRANTED.
Plaintiff’s Motion for Summary Judgment (ECF No. 10) is DENIED. The
Commissioner’s final decision is AFFIRMED. A separate order shall issue.
Date: August 29, 2016
/s/
Thomas M. DiGirolamo
United States Magistrate Judge
28
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