Whitehead v. Astrue

Filing 38

ORDER granting 34 Government's Motion for Judgment on the Pleadings and denying 28 Plaintiff's Motion for Judgment on the Pleadings. Signed by U.S. District Judge Terrence W. Boyle on 5/23/11. (Talbert, S.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

NORTHERN DIVISION

No.2:10-CV-35-BO

Lisa Whitehead,

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Plaintiff,
v.

MICHAEL 1. ASTRUE,
Commissioner of Social Security,
Defendant.

ORDER

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This matter is before the Court on both Plaintiff and the Government's Motion for
Judgment on the Pleadings. The Government's Motion is GRANTED.
I.

FACTS

Plaintiff was born in June 1967 and has formerly worked as a short order cook, baby
sitter, and a home health aide (Tr. 30-34,124-26,128). Plaintiff alleges that on December 28,
2001 1 she became unable to work due to lumbar degenerative disc disease, carpal tunnel
syndrome, degenerative joint disease in her knees, chronic obstructive pulmonary disease
(COPD), obesity, sleep apnea, hypertension, major depressive disorder, post traumatic stress
disorder (PTSD), and personality disorder (Tr. 124); Plaintiffs Brief, p. 3-4.
A. Medical Evidence Relating to Plaintiff s Physical Ailments

On May 23, 2006, Plaintiffretumed to Pitt County Memorial Hospital (Pitt County)

I Plaintiff filed a previous application for benefits that was denied by an ALl on May, 8,
2006, with no further appeal (Tr. 120). Plaintiffs current claim for benefits thus does not cover any time on or
before May 8, 2006.

Pain Center for lower back pain and pain in both her legs (Tr. 161-62). She is 5' 6" and weighed
approximately 320 pounds. Dr. Raymond Minard, M.D. noted that she had degenerative changes
from L1 through L4 without stenosis or foraminal compromise (Tr. 161). On physical
examination, Plaintiff had no pain while sitting, was alert and oriented, had normal results with
straight leg testing, had some knee pain but no acute weakness on motor testing, and had no dorsi
or plantar flexor weakness in her quads or hamstrings (Tr. 161). Dr. Minard strongly
recommended exercise on a stationary bike and weight loss, and also increased her dosage for
the pain medication, Keppa. Id.
Plaintiff had her next follow-up on July 21,2006 (Tr. 159-60). Although she still
complained of pain, she reported that her medication "maintained her pain control quite nicely"
(Tr. 159). Physical examination revealed that she could rise from a seated to a standing position
without difficulty, could walk without difficulty, and did not require the use of an assistive
device to walk (Tr. 159).
On July 26, 2006, Kristin W. Warren, PA-C, examined Plaintiff (Tr. 205-08). Plaintiff
complained of pain in her knees and hands. (Tr. 205-06). Plaintiff s examination revealed,
among other things, that her wrists were non-tender, her nerve compression test and Tinel's sign2
test were negative, her ulnar, median and radial nerves were intact, her grip strength and muscle
strength in her wrists and arms were normal or 5/5, and she had no degenerative joint disease in
her hand (Tr. 206-08). Examination of her legs showed a limp; mild swelling, crepitation, and
effusion in both knees; normal patellar positioning; no hip swelling or tenderness; equal leg
length; normal bilateral strength and a full range of motion in her hips; an active but painful
range of motion in her knees; and moderate degenerative joint disease in her knees (Tr. 206-08).
She was given a knee injection and advised to exercise (Tr. 208).
2

Tine('s sign is used to detect irritation in nerves

2

On August 11, 2006, Perry Caviness, M.D., performed a Physical Residual Functional
Capacity Assessment of Plaintiffs medical records (Tr. 175-82). Dr. Caviness concluded that
Plaintiff could perform the functional requirements of a full range medium-level exertiona1 work,
minus the restriction of having to avoid concentrated exposures to hazards (Tr. 175-82). Jolene
Jean Gracia, M.D., affirmed this assessment on November 1, 2006 (Tr. 210).
On August 23,2006, PA Warren again examined Plaintiff, specifically noting that
Plaintiff experienced "marked improvement" of greater than 50% of her hand and knee
symptoms. While she still had swelling in her right knee, she only had only "mild, intermittent
pain" and she was able to start walking for exercise (Tr. 201).
On October 6, 2006, Dr. Ira Hardy, II, M.D. of the Center for Scoliosis & Spinal Surgery,
PPLC (CSSS) examined Plaintiff (Tr. 332-33). Dr. Hardy found that Plaintiff was in no acute
distress; had a slow walk; had

+1 reflexes in both knees and ankles; had no objective motor or

sensory deficit; had a negative straight leg raising test; had a good range of motion in her hips;
had sick space narrowing at L4-L5 and L5-S 1; and had "no evidence of instability throughout
flexion or extension" (Tr. 332-33). A subsequent October 26,2006 MRI of Plaintiffs lumbar
spine, which was reviewed by Dr. Hardy on February 6, 2007, showed congenital deformity and
central canal stenosis of the right L5-S 1 joint, moderate central canal stenosis and right neural
foraminal narrowing; moderate lower lumbar facet degenerative disease; and simple cystic
structures in her ovaries (Tr. 334, 331). Dr. Hardy prescribed no treatment.
The record does not contain further treatment related to Plaintiff s physical impairments
until October 9, 2007, when Eric Francke, M.D., ofCSSS examined her (Tr. 327-29). Dr.
Francke observed that Plaintiff was not in acute distress, had 5/5 strength in both of

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her legs and throughout all of her lower extremity motor groups, had +2 reflexes in her Achilles
and patellar tendons, and intact sensation in all dermatomal distributions (Tr. 328). Dr. Francke
advised Plaintiff to quit smoking and about possible back surgery (Tr. 328).
On January 14, 2008, Plaintiff had back surgery at Pitt County. Specifically, the
operation was an LS-Sllaminectomy and right-sided facetectomy and transforaminallumbar
interbody fusion. (Tr. 318-22).
Plaintiff was discharged on January 17,2008, and she was "doing well with no
complaints of leg pain" (Tr. 316). She had some back pain at the surgical site, but her leg pain
was resolved, and she had 5/5 strength throughout her lower extremities (Tr. 316). Plaintiff did
well with physical therapy, continued to improve, and was discharged with instructions to avoid
repetitive bending, twisting, or lifting (Tr. 316).
On a January 29, 2008 follow-up appointment, Plaintiff showed "good strength" in her
lower extremities and intact sensation throughout (Tr. 364). Just two weeks after the surgery, Dr.
Francke noted that Plaintiff was "doing well from a symptomatic standpoint" (Tr. 364). On
February 19,2008, although Plaintiff reported "some discomfort" in her back when she twists in
bed, her leg pain was totally resolved (Tr. 368). On March 18, 2008, Plaintiff reported that she
was "doing well" (Tr. 371). She had no pain in her legs, but, due to a recent fall, her back was a
"bit sore" (Tr. 371). She reported that her back ached when she first got up in the morning, but
that it "resolves quickly" (Tr. 371). On examination, Plaintiff was walking without difficulty (Tr.
371).
Plaintiff visited Dr. Reginald Obi, M.D. on April 16,2008 for shortness of breath and
coughing spells (Tr. 336-37). The doctor noted that Plaintiff smoked a pack of cigarettes daily
for 22 years, and "mostly" had her symptoms while she smokes. Dr. Obi advised Plaintiff to quit

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smoking and lose weight via dietary discretion and exercise (Tr. 337). Dr. Obi examined Plaintiff
again on May 16, 2008, and noted that Plaintiff had ankle pain and had gained 13 pounds in one
month due to binge eating, bringing her weight to 287 pounds. (Tr. 343). He prescribed the
Dyazide for her pain.
On May 20, 2008, Plaintiff reported that her leg pain was totally resolved. Although she
had an intermittent stinging in her back, she said that it was something that "she can live with"
(Tr. 375). Dr. Francke noted that she should improve over the next month (Tr. 375). Dr. Obi
examined Plaintiff again on July 9, 2008, and she had no new complaints (Tr. 341).
Plaintiff visited Plymouth Primary Care on November 19,2008. She complained of back
pain and a cough. Plaintiff said her pain was "controlled" with pain medication Voltaren, but that
the cold weather made her pain worse. (T p. 387). She was prescribed a higher dosage of
Voltaren. Plaintiffs December 8,2008 x-ray of her lumbar spine revealed that the anterior and
posterior fusion of her L5-S 1 was in proper anatomic alignment; she had minimal degenerative
bony changes without disc space narrowing; she had no fractures or bone destruction; and her
sacroiliac joints were normal (Tr. 390). Plaintiff returned for follow up on December 16, 2008.
She continued to suffer from low back pain, which interfered with her housework. Upon
examination, her lower spine had mild tenderness. Plaintiff was prescribed Darvocet in addition
to Voltaren. (T p. 386).
On June 23,2009, Plaintiff visited Dr. Lynn Johnson at the pain clinic at Pitt County
Memorial Hospital. She complained of right leg and arm numbness as well as low back pain. The
low back pain had increased in severity in the few months prior to this visit. Plaintiff described a
throbbing pain that traveled to her lower extremities. She also complained of weakness in her
legs. (T pp. 393-399). Plaintiff reported continued use of cigarettes daily and marijuana weekly

5

(Tr. 395). On examination, Plaintiff was alert and oriented and in no apparent distress; had mild
tenderness with no swelling in her back; had negative straight leg raise testing; had 5/5 muscle
strength with flexion, extension, abduction, and adduction; had 2/4 reflexes in her legs; had a
wide base support gait; normal sensation, had a normal psychiatric affect; and tested positive for
marijuana. (Tr. 397-98).
An MRI of the lumbar spine was performed on July 30, 2009. The scan revealed
moderate facet arthrosis and disc bulging at L4-L5, resulting in bilateral lateral recess narrowing.
(T p. 401). Plaintiff had a series oflumbar epidural steroid injections to alleviate the pain. (T p.
409)
A July 30, 2009, an MRI of her lumbar spine revealed no evidence of disc herniation or
spinal stenosis; and moderate facet arthrosis and disc bulging at L4-L5, resulting in mild bilateral
recess narrowing (Tr. 40 I).
On examination on August 13,2009, Plaintiff reported complaints similar to her
previous ones and showed similar results to her July examination, including normal straight leg
raise testing and strength in her legs (Tr. 402-08). On August 28, 2009, Plaintiffreceived an
epidural steroid injection for pain, and she was "discharged in excellent condition, walking with
unchanged gait and without evidence of complications" (Tr. 409).
The last examination in the record is from September 10, 2009 at Pitt County by Dr.
Johnson (Tr. 410-15). Plaintiff stated that she normally had an assistant help her with house
work, but the assistant did not come the day before. As a result, Plaintiff suffered severe lower
back pain after bending to take clothes out of the dryer and making her bed. Plaintiffs condition
improved after her steroid injection (Tr. 410). Dr. Johnson encouraged her to try daily exercise
and to take pain medication. (Tr. 415)

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B. Medical Evidence Relating to Plaintiff s Mental Impairments

On August 9, 2006, consultative examiner Richard J. Bing, Ph.D., examined Plaintiff.
Plaintiff said she was sexually abused by uncles during her childhood from ages 9 to 14, but
avoids contact with her uncles and has not experienced any flashbacks for several years (Tr. 171,
361). She stated that she becomes very anxious and angry, particularly when she perceives a man
to be negatively evaluating her. (Tr. 171-172). She stated that these symptoms did not interfere
with her job when she had been working with patients one-on-one as a health aide, and only
interfered when she encountered two or more men. (172-173).
Dr. Bing noted that Plaintiff was alert and oriented with adequate eye contact; had a
restrictive, but not appreciably depressed affect; had no suicidal or homicidal ideation; had no
hallucinations; answered several questions concerning memory and judgment; and had an
estimated intellectual level in the low average to borderline range (Tr. 171-73). Dr. Bing
assessed Plaintiff with a Global Assessment of Functioning (GAF) score of 55, indicating
moderate symptoms. He diagnosed PTSD and depression. (Tr. 173).
Dr. Bing concluded that "[b]y her report, she may have difficulty in terms of certain work
situations, particularly if there is a lot of people there and particularly men who tend to be
certain. Given the totality of her difficulties, she may very well have a difficult time tolerating
the stress and pressures associated with day-to-day work activity." (Tr. 174). Dr. Bing also
concluded that Plaintiff demonstrated the ability to understand, retain, and follow instructions, to
perform simple and repetitive tasks, and to manage her own finances (Tr. 174).
On August 14,2006, Cal Vander Plate, Ph. D., performed a Psychiatric Review
Technique (PRT) and a Mental Residual Functional Capacity Assessment based on Plaintiffs
mental records (Tr. 183-200). He found that Plaintiff had mental impairments with moderate

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limitations in the areas of activities of daily living, difficulties in maintaining social functioning,
and maintaining concentration, persistence, and pace (Tr. 193, 197-98). Arlene M. Cooke, Ph.D.,
affirmed this assessment on reconsideration on November I, 2006 (Tr. 211).
On April 17,2007, Plaintiff was examined by Dr. Saman Hasan, M.D. at ECU Physicians
(Tr. 213-16). Dr. Hasan found that Plaintiff exhibited mild symptoms of depression and Dr.
Hasan increased her dosage of Zoloft. (Tr. 213-16). Dr. Hasan recommended therapy, and
Plaintiff said she would consider it but lacked transportation.
Nearly one year later, Plaintiff sought mental health treatment from Albemarle Mental
Health Center (AMHC), where she was examined Dr. Kalavathi Kolappa, M.D., and Licensed
Clinical Social Worker Ann Morgan several times from March 5, 2008, to October 6,2008 (Tr.
344-63,378-83).
During Plaintiffs initial evaluation at AMHC on March 5, 2008, she complained of poor
sleep and appetite, crying spells, hopelessness and helplessness, and flashbacks from sexual
abuse (Tr. 361). She also reported financial hardship and relationship difficulties with her
boyfriend. Dr. Kolappa assessed her with a OAF of 45, and she and Ms. Morgan found that
Plaintiff was alert, cooperative, obese, and slow with movements; had a mildly depressed affect
and depressed mood; had a good memory and fair judgment and insight; and had no psychosis or
violent behavior (Tr. 362-63). She was diagnosed with recurrent and moderate major depressive
disorder, as well as chronic PTSD. (Tr. 362). The doctors prescribed supportive psychotherapy
and Zoloft.
Plaintiff started therapy with Ms. Morgan on March 19,2008. (Tr. 360). On the same
day, Dr. Kolappa saw the Plaintiff and reported that she was "slowly improving" with less

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crying spells and better sleep and appetite, but she still had a dysthymic 3 affect and depressed
mood (Tr. 359-60). By March 26,2008, Plaintiff was improving and "doing better," including
being alert, friendly, cooperative, smiling, and having good eye contact, appropriate affect to
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thought content, euthymic mood, clear and coherent speech, no crying spells, and no side effects
from medication (Tr. 358). Plaintiff also continued her individual therapy sessions with Ms.
Morgan.
In April 2008, Plaintiff continued to improve, consistently having a euthymic mood, good
eye contact, appropriate affect, clear and coherent speech, no evidence of psychosis or violent
behavior, and no complaints of side effect from her medication (Tr. 352-57). Ms. Morgan
indicated that problems with Plaintiffs self-esteem and assertiveness would likely be improved
with future treatment (Tr. 356). Dr. Kolappa also indicated that Plaintiffs intake of caffeine right
before she goes to bed was contributing to her sleep problems (Tr. 355).
On May 7,2008, Ms. Morgan indicated that Plaintiff was feeling "good" (Tr. 351).
Plaintiff continued to improve in May, as Dr. Kolappa indicated that she was "doing better" and
Ms. Morgan stated that she was making progress on May 21,2008 (Tr. 349-50). On June 11,
2008, Plaintiff continued to have similar findings of improvement (Tr. 347-48). On July 16,
2008, Dr. Kolappa stated that Plaintiff is "doing better" on her medication and noted that she
observed "no evidence of any psychosis or depression" (Tr. 345). On July 30, 2008, Dr. Kolappa
indicated that Plaintiff was still improving (Tr. 382). On August 27, 2008, Ms. Morgan indicated
that although Plaintiff had problems listening, she was improving (Tr. 381 ). Also on that day,
Dr. Kolappa stated that she was "doing well" and was improving with no evidence of depression
(Tr. 380).

3
4

Dysthymia is a mood disorder characterized by chronic mild depression.

Euthymia is a state of mental tranquility and well-being; neither depressed, nor manic.

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On September 19 and October 6,2008, the last progress note entries from Plaintiffs
mental health providers, Ms. Morgan indicated that Plaintiff got a lot of satisfaction from being a
martyr. (Tr. 378-79). On November 6, 2008, Dr. Kolappa completed a check-form report that
indicated that Plaintiff met Listing 12.04 (Tr. 383-84). Dr. Kolappa checked off that Plaintiff had
the following depressive symptoms: anhedonia, appetite disturbance, psychomotor agitation or
retardation, decreased energy, feelings of guilt or worthlessness, and difficulty concentrating. As
a result of these symptoms, Dr. Kolappa checked off that Plaintiff has marked difficulties in
maintaining social functioning and marked difficulties in maintaining concentration, persistence
or pace. (T pp. 383-384). Dr. Kolappa did not discuss these findings on the form.
C. Procedural History
Plaintiff protectively filed for disability under Titles II and XVI on June 8, 2006, alleging
an onset date of December 28, 2001. The Agency denied Plaintiffs applications initially on
August 14,2006 (Tr. 48-49, 57-61), and upon reconsideration on November 2,2006 (Tr. 50-51,
63-71). On February 26, 2009, Plaintiff appeared and testified at a hearing held before
Administrative Law Judge Larry A. Miller (Tr. 11,25-47).
1. The AJL 's Decision

At step one, the AJL found that Plaintiff was not engaged in substantial gainful activity
since her alleged onset date (Tr. 13). At step two, he found that Plaintiff had a "severe"
combination of impairments, including lumbar degenerative disc disease, carpal tunnel
syndrome, degenerative joint disease in her knees, chronic obstructive pulmonary disease,
obesity, sleep apnea, hypertension, major depressive disorder, post traumatic stress disorder and
personality disorder (Tr. 14). At step three, he found that Plaintiffs impairments did not meet or

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medically equal any Listing in Appendix 1, Subpart P, Regulation No.4, including Listings 1.04,
1.08,2.02-2.04,4.02,4.04,6.02, 11.04, 12.04, 12.06, 12.08, and 14.09 (Tr. 14-15).
The AU determined that Plaintiffs allegations of the intensity, duration, and limiting
effects of the symptoms caused by her impairments were not fully credible (Tr. 16-21). At step 4,
he found that Plaintiff could perform light exertional work on a regular and sustained basis,
including being able to: lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds
frequently; stand or walk, and sit for approximately 6 hours each in an 8-hour day; occasionally
stoop, crouch, kneel, or crawl; and frequently perform fingering and handling tasks; and perform
simple, routine, and repetitive tasks (Tr. IS). He also found that she was unable to work at a
production rate or perform jobs that require complex decision, constant change or crisis
situations, and that she should have no contact with the public and only occasional dealings with
co-workers (Tr. 15). At step four, the ALl found that Plaintiff, given her RFC, was unable to
perform her past relevant work (PRW) (Tr. 22).
At step five, based on Plaintiffs age, limited education, work experience, RFC, and
testimony from a vocational expert, the AU found that Plaintiff could perform several
representative jobs, including office helper, photo copy editor, and shipping and receiving editor
(Tr. 42-46). As a result, the ALl determined that Plaintiff is not disabled under the Act on
March 17,2009 (Tr. 23-24).
The Appeals Council denied Plaintiff s request for review on May 24, 20 10, and the
ALl's decision became the Commissioner's final decision (Tr.I-5). Plaintiff then requested
review of that final decision pursuant to 42 U.S.C. § 405(g), and this Court held a hearing on this
case on April 21, 2011.

II

II.

DISCUSSION

Plaintiff asserts that the ALJ erred in finding that Plaintiff s mental impainnents did not
meet listing 12.04. She also claims that the ALl erred in finding Plaintiff had the residual
functional capacity (RFC) to perfonn light work.
The Court finds that the ALl committed no error and substantial evidence supports his
findings. Plaintiff failed to meet her burden showing she met a statutory listing. The evidence
also supports the ALl's RFC assessment.
A. Standard of Review

The Social Security Act defines "disability" as an inability "to engage in any substantial
gainful activity by reason of any medically detenninable physical or mental impainnent which
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." See 42 U.S.c. § 423(d)(l)(A).
In reviewing a final decision of no disability by the Social Security Administration
Commissioner, the Court must detennine whether the Commissioner's decision is supported by
substantial evidence under 42 U.S.c. § 405(g), and whether the ultimate conclusions reached by
the Commissioner are legally correct under controlling law.
The Social Security disability analysis follows five steps. An ALl must consider (1)
whether the Plaintiff is engaged in substantial gainful activity, (2) whether the Plaintiff has a
severe impainnent, (3) whether the Plaintiff has an impainnent that meets or equals a condition
contained within the Social Security Administration's official list of impairments, (4) whether
the Plaintiff has an impainnent which prevents past relevant work, and (5) whether the Plaintiffs
impainnent prevents the perfonnance of any substantial gainful employment. 20 C.F.R.§§
404,1520, 1520a.

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The Plaintiff bears the burden for steps one, two, three, and four, while the Defendant
shoulders the burden for step five. If the Plaintiff shows by a preponderance of evidence that he
has a statutory impairment under step three, he is conclusively presumed to have a disability and
the analysis ends. Bowen v. Yuckert, 482 U.S. 137, 141 (1987). Alternatively, if the plaintiff
fails to prevail under step three, she can still show she has an impairment that prevents her from
continuing past work under step four. If so, the burden shifts to the Defendant to establish that
the plaintiff is able to perform another job available in the national economy under step five. Id.
at n. 5.
B. Plaintiffs mental impairments do not meet Listing 12.04
Substantial evidence supports that Plaintiffs mental impairments do not meet the listed
mental disorder 12:04, titled "Affective Disorder."
Affective Disorder is "a disturbance of mood, accompanied by a full or partial manic or
depressive syndrome." The required level of severity for these disorders is met when the
requirements in both section A and 8 are satisfied. 5 The requirements in section A are
"[m]edically documented persistence, either continuous or intermittent, of either Depressive
syndrome or Manic syndrome. Depressive syndrome is characterized by at least four of the
following:"
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
5 A Claimant could alternatively show affective disorder when the requirements in section C are satisfied.
As the Plaintiff does not claim this, the Court will not discuss section C.

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h. Thoughts of suicide; or
i. Hallucinations, delusions or paranoid thinking; or severe depression
Id. Manic syndrome is characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful consequences which
are not recognized; or
h. Hallucinations, delusions or paranoid thinking; manic syndrome

Section B is satisfied when a claimant proves an impairment results in at least two of the
following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Id. "Marked" means more than a moderate, but less than an extreme limitation. 20 C.F.R. Part
404, Subpart P, Appendix 1, §12.00B.
Here, Plaintiff claims she qualifies for depressive syndrome in section A. She claims she
has the following depressive symptoms: anhedonia, appetite disturbance, psychomotor agitation
or retardation, decreased energy, feelings of guilt or worthlessness, and difficulty concentrating.
As a result of these symptoms, Plaintiff states she satisfies section B through marked difficulties
in maintaining social functioning and marked difficulties in maintaining concentration,
persistence or pace. Plaintiff supports her argument with her diagnosis of depression and PTSD,

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as well as a check-form report from her doctor. The AlL however, found that Plaintiff had failed
to establish that her mental impairments were as severe as is required by the "B" criteria of
Listing 12.04, as she had, at worst, moderate restrictions in the relevant areas of limitation (Tr.
15). The ALl's determination is supported by substantial evidence.
The record shows that Plaintiff does not have marked limitations in maintaining social
functioning or in maintaining concentration, persistence or pace. First, Plaintiff admitted to Dr.
Bing in August 2006 that her mental symptoms have not interfered with her work activity. When
Dr. Bing asked her if her "anxiety symptoms have ever interfered with work" Plaintiff said "no
not when she was working with patients one-on-one, but if she encounters, for example, two or
men [sic] particularly if they appear to have a negative evaluation of her, she does become highly
anxious and angry." (Tr. 172-173).6
Additionally, Plaintiff's mental health significantly improved after she first sought mental
health treatment at AMHC in March 5, 2008. Initially, Plaintiff complained of poor sleep
and appetite, crying spells, hopelessness and helplessness, and flashbacks, and Dr. Kolappa
assessed her with a depressed mood, a dysthymic affect, and a GAF of 45 (Tr. 361-63). But
within a month, Plaintiff was "doing better" and had a euthymic mood without depression (Tr.
358). She also improved her eye contact and affect, and she had eliminated her crying spells (Tr.
358). From late March 2008 through October 2008, Plaintiff consistently maintained or
improved her mental condition, including improving to a point where her doctor consistently
stated that she was "doing better," had less or no crying spells, and/or presented no evidence of
depression (Tr. 344-57, 378-82). There is not a single note evidencing any regression or inability

The AlL specifically accounted for this problem in the RFC assessment, which stated
Plaintiff should have no contact with the public and only occasional dealings with co-workers
(Tr. 15).
6

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to perform basic work-related activities.
Plaintiff nevertheless argues she has marked limitations in maintaining social functioning
and marked difficulties in maintaining concentration, persistence or pace. The only support
Plaintiff offers is the check-box form submitted by Dr. Koloppa on November 6, 2008. If a
treating physician's opinion is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in a case record,
it receives controlling weight. 20 C.P.R. § 404.1527(d)(2). "By negative implication, if 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, 589 (4th Cir. 1996). Additionally, the ALl is not bound by a treating physician's opinion
regarding whether a claimant is disabled, as that opinion is reserved for the Commissioner. See
20 C.F.R. §§ 404.1527(e)(l). 416.927(e)(l). Here, the ALl correctly found that Dr. Koloppa's
check-box form does not deserve controlling weight.
Form reports, in which a physician's only obligation is to check a box or fill in a blank,
are entitled to little weight in the adjudicative process. See, e.g., Crane v. Shalala, 76 F.3d 251,
253 (9th Cir. 1996); Mason v. Shalala, 994 F.2d 1058, 1065 (3rd Cir. 1993); O'Leary v.
Schweiker, 710 F.2d 1334, 1341 (8th Cir. 1993). Additionally, the form used by Dr. Koloppa is
not the standard Agency form used by DDS Physicians to assess the functional abilities of
claimants. Indeed, Dr. Koloppa's form only allowed for checking whether a claimant had certain
symptoms, and whether her mental impairment caused functional limitations that were "marked"
(Tr. 383-84). There was no space for, and Dr. Koloppa did not provide, any citation or reference
to treatment notes or records, nor any explanation of how the physician arrived at her opinion.
And as the ALl noted, with no explanation or reasoning given for her findings, it is thus

16

impossible to determine if she knew and applied the relevant regulatory definition of "marked,"?
or if she used some other definition (Tr. 21).
Moreover, the form's conclusions had no support in the medical record. Indeed, as the
ALl specifically found, Dr. Koloppa's November 2009 opinion is inconsistent with both Dr.
Kolappa's own treatment notes, and the notes of Ms. Morgan, a social worker at her AMHC
office (Tr. 21). The form report is thus insufficient for Plaintiff to carry her burden at step 3.
Therefore, the AlL correctly found that Plaintiff did not qualify for listing 12.04.
C. Substantial Evidence Supported the AlL's Residential Functional Capacity
Assessment
Plaintiff argues the AlL erred in finding she had the Residential Functional Capacity
(RFC) to perform light work. Plaintiff argues that the AlL did not adequately account for both
her mental and physical impairments. Plaintiffs arguments are unpersuasive.

i. Menta/impairments
The ALl included several limitations in Plaintiff s ability to perform light work,
including several limitations related to Plaintiffs mental impairments. Specifically, the AlL
found that Plaintiff could not work at a production rate and could not work with the public and
only occasionally with co-workers. He also found Plaintiff could not engage in complex
decision-making, constant change, or crisis situations, and he limited her to simple, routine, and
repetitive tasks. Substantial evidence supports this RFC.
In August 2006, Dr. Bing found that Plaintiff had, at worst, moderate mental functional
limitations, and assessed her with a OAF of 55 (Tr. 171-73). Dr. Bing stated that "[b]y her report,
she may have difficulty in terms of certain work situations, particularly if there is a lot of people

7 "Marked" means more than a moderate, but less than an extreme limitation. 20 C.F.R.
Part 404, Subpart P, Appendix 1, §12.00B.

17

there and particularly men who tend to be certain. Given the totality of her difficulties, she may
very well have a difficult time tolerating the stress and pressures associated with day-to-day
work activity." (Tr. 174)(emphasis added). Dr. Bing concluded that Plaintiff demonstrated the
ability to understand, retain, and follow instructions, to perform simple and repetitive tasks, and
to manage her own finances.
Dr. Bing's assessment is consistent with the rest of the record. Two separate state agents
concurred with his conclusions, finding Plaintiff had only moderate limitations. On August 14,
2006, Cal Vander Plate found that Plaintiff had mental impairments with moderate limitations in
the areas of activities of daily living, difficulties in maintaining social functioning, and
maintaining concentration, persistence, and pace (Tr. 193, 197-98). Arlene M. Cooke, Ph.D.,
affirmed this assessment on reconsideration on November 1, 2006 (Tr. 211). Additionally, when
Dr. Hasan, M.D. examined Plaintiff on April 17, 2007, she found that Plaintiff had only mild
symptoms of depression. (Tr. 213-16). Plaintiff has never had any psychiatric hospitalizations
(Tr. 361), and her hospital records concerning her physical impairments indicate that Plaintiff did
not exhibit any mental impairments or emotional disturbances (Tr. 202, 206).
Plaintiffs own statements also support the ALl's RFC finding. For example, Plaintiff
told Mr. Bing that she briefly was paid to take care of children in her home and also cared for her
godchildren. Plaintiff stopped caring for these children not because of any disability, but because
she "didn't have the patience" to deal with them (Tr. 21, 172). She also told Dr. Bing that her
mental impairments did not interfere with her taking care of patients while she was a home
health aide. (17,21,172).
Dr. Koloppa is the only source finding that Plaintiff had marked mental impairments; as
explained above, the ALl correctly found Dr. Koloppa's assessment is entitled to little weight

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because it lacks medical support and is inconsistent with the rest of the record, including Dr.
Koloppa own notes.
The ALl properly took into consideration Plaintiffs documented mental impairments
when formulating her RFC. Thus, substantial evidence supports the ALl's conclusion that
Plaintiff can perform light work with certain limitations.
2. Physical Impairments

The AlL also accounted for Plaintiffs physical restrictions in Plaintiffs RFC by limiting
her to only light work. He found Plaintiff could lift, carry, push, and pull up to 20 pounds
occasionally and 10 pounds frequently; stand or walk, and sit for approximately 6 hours each in
an 8-hour day; only occasionally stoop, crouch, kneel, or crawl; and frequently perform fingering
and handling tasks.
Nevertheless, the Plaintiff challenges these findings, relying on her own, subjective
hearing testimony regarding her knee and back pain, as well as her statements in a doctor visit on
September 10,2009. Pl.'s Mot. at 11 (citing tr. 36-37,42). The ALl, however, found that
Plaintiffs subjective statements concerning the intensity, persistence, and limiting effects of her
symptoms were not fully credible, and Plaintiff does not challenge this finding.
Additionally, Plaintiffs own statements as well as ample objective medical evidence
show that Plaintiff is capable of light work with the above listed limitations. Despite her
testimony that her pain never improved after surgery (Tr. 36), Plaintiff has repeatedly told
doctors that her back and leg pain had significantly improved since her surgery (Tr. 21, 316, 368,
371). Plaintiff has also stated that "she can live with" her remaining back pain. (Tr. 375). Her
doctors have repeatedly found that Plaintiff had normal (5/5) lower extremity strength and the
ability to walk without difficulty (Tr. 21, 159, 171, 206-08, 316, 321, 328, 396-98, 402-08, 409,

19

414). Even during the September 2009 visit that the Plaintiff cites in her briefing, the doctor
noted full muscle strength and only mild tenderness in the Plaintiffs lower back.
Thus, the ALl's RFC finding is supported by substantial evidence.
III.

CONCLUSION

The ALJ committed no error in this case. Thus, the Government's Motion for Judgment
on the Pleadings is GRANTED.

SO ORDERED, this

-a.J-

day of May, 2011.

~L~¥
UNITED STATES DISTRICT JUDGE

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