Dear v. Astrue

Filing 18

ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings and granting 15 Defendant's Motion for Judgment on the Pleadings. Signed by US District Judge James C. Dever III on 9/20/2011. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

4: 10-CV-95-D

BRUCE DEAR,
Plaintiff,

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)

)

)

)

ORDER

Bruce Dear (''plaintiff' or "claimant") appeals the final decision ofdefendant Commissioner
ofSocial Security ("Commissioner") denying his application for a period ofdisability and disability
benefits ("benefits"). Each party has filed a motion for judgment on the pleadings [D.E. 11, 15].
As explained below, the court grants the Commissioner's motion for judgment on the pleadings,

denies plaintiff's motion, and affirms the final decision of the Commissioner.

I.
Plaintiff applied for benefits on August 17, 2005, alleging a disability onset date ofApril 1,
2004. R. at 13; see id. at 86. His application was denied initially, and again upon reconsideration,
and a request for hearing was timely filed. Id. at 13,44,47-49,51-54. On June 13,2008, a hearing
was held before an Administrative Law Judge ("ALI"). Id.542-75.
On September 4, 2008, the ALI found plaintiff not disabled and denied his application for
benefits. Id. at 13-23. Plaintiff timely requested review by the Appeals Council. Id. at 9. The
Appeals Council denied the request for review. Id. at 3-5. Plaintiff commenced this proceeding
on July 16,2010 [D.E. 1]. See 42 U.S.C. § 405(g).

II.

The Social Security Act ("Act") defines disability as the "inability to engage in any
substantial gainful activity by reason ofany medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995). The regulations under the Act ("Regulations") provide a five-step
analysis that the ALI must follow when determining whether a claimant is disabled. Essentially,
this process requires the ALI to consider whether a claimant (1) is engaged in substantial gainful
employment; (2) has a severe impairment; (3) has an impairment that meets or equals the
requirements of a listed impairment; (4) possesses the residual functional capacity ("RFC") to
return to his past relevant work; and (5) if not, whether he can perform other work in light of his
age, education, work experience, andRFC. See 20 C.F.R. § 404.1 520(a)(4). Theclaimantbearsthe
burden of proof at steps one through four, but the burden shifts to the Commissioner at step five.
See, e.g., Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Pass, 65 F.3d at 1203.
Applying the five-step analysis of20 C.F.R. § 404. 1520(a)(4), the ALI made the finding at
step one that plaintiff had engaged in substantial gainful activity since the alleged onset date ofApril
1,2004, specifically in 2004 and 2006 to 2008. R. at 15-16 1[ 2. Plaintiffs earnings in 2005 were
below the substantial gainful activity level; therefore, the ALJ applied the remaining steps in the
sequential evaluation. Id. at 16. At step two, the ALJ found that plaintiff had the following
medically determinable impairments which were severe within the meaning ofthe Regulations, 20
C.F.R. § 404.1520(c): diabetes mellitus, coronary artery disease, degenerative joint disease ofthe
knee, an affective disorder, and attention deficit hyperactivity disorder. Id. at 16 1[ 3. At step three,
however, the ALI found that plaintiff s impairments did not meet or medically equal any ofthe listed
2

impairments. Id. at 16,4.
The ALJ determined that plaintiff had the RFC to perform work at the medium exertional
level with postural, manipulative, environmental, and mental restrictions. 1 Id. at 17,5. Based on
this RFC, the ALJ found at step four that plaintiff could not perform any past relevant work. Id. at
22,6.
At step five, the AU found that there are jobs in significant numbers in the national economy
that plaintiff could perform, including laundry laborer, grocery bagger, and machine packager.2 Id.

at 22-23 ~ 10. In making this determination, the ALJ adopted the opinion of a vocational expert
who testified at the hearing. Id. at 23 , 10. The ALJ accordingly found plaintiff not disabled during
the relevant period. Id. at 23 , 11.

m.
In reviewing the parties' cross-motions for judgment on the pleadings, the court ''must uphold

the factual fmdings of the [AL.T] if they are supported by substantial evidence and were reached
through application ofthe correct legal standard." Craigv. Chater, 76F.3d585, 589 (4th Cir. 1996);
see 42 U.S.C. § 405(g). "Substantial evidence" is "more than a mere scintilla ofevidence but may
be somewhat less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Under the substantial evidence standard, the court may not "undertake to re-weigh conflicting

1 Specifically, the ALJ found that plaintiff can stand and walk for up to 6 hours in an 8-hour
day and lift 50 pounds occasionally and 25 pounds frequently; should avoid tasks requiring constant
handling or fingering, balancing, climbing, or working at unprotected heights, near dangerous
machinery, and in environments having respiratory irritants such as dust, fumes, and smoke; and can
perform only simple, routine, and repetitive tasks due to a decreased ability to concentrate on and
attend to work tasks. R. at 17.
2 The AU's decision misstates the Dictionary ofOccugational Titles ("DOT") code provided
by the vocational expert for machine packager as 699.866-012. R. at 23 (emphasis added). The
vocational expert cited code 699.866-010. Id. at 568 (emphasis added).

3

evidence, make credibility determinations, or substitute [its] judgment for that ofthe [AU]." Craig,
76 F.3d at 589. Before the court can determine whether a decision is supported by substantial
evidence, it must ascertain whether the Commissioner has considered all relevant evidence and
sufficiently explained the weight given to probative evidence.

See,~,

Sterling Smokeless Coal

Co. v. Akers, 131 F.3d 438, 439-40 (4th Crr. 1997). "Iudicial review ofan administrative decision
is impossible without an adequate explanation ofthat decision by the administrator." DeLoatche v.
Heckler, 715 F.2d 148, 150 (4th Crr. 1983).
Plaintiff contends that the ALI's decision should be reversed because the ALI: (1) gave
inadequate weight to the opinions of several providers in determining his RFC; (2) did not include
in his hypothetical to the vocational expert all significant nonexertional impairments; and (3) did not
recognize plaintiff s need to take unscheduled breaks every two hours to test his blood glucose. See
PI. Mem. Supp. Mot. J. Plead. 4-7. The court examines each argument seriatim.

A.
The principles governing plaintiffs argument concerning the weight given the opinions at

issue are well defmed. Opinions of physicians and psychologists who have treated a claimant are
generally accorded more weight than the opinions ofsuch providers lacking a treatment relationship.
20 C.F.R. § 404.1527(d)(2). After all, the treating sources are likely to be those "most able to
provide a detailed, longitudinal picture of ... [a claimant's] medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports ofindividual examinations, such as consultative examinations or brief
hospitalizations." Id. Indeed, the Regulations provide that opinions of treating physicians and
psychologists on the nature and severity ofimpairments are to be accorded controlling weight ifthey
are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not
4

inconsistent with the other substantial evidence in the record. Id.; see Craig, 76 F.3d at 590; Ward
v. Chater. 924 F. Supp. 53, 55-56 (W.D. Va. 1996); Soc. Sec. R. 96-2p, 1996 WL 374188, at "'2
(July 2, 1996). But "[ilt is an error to give an opinion controlling weight simply because it is the
opinion ofa treating source ifit is not well-supported by medically acceptable clinical and laboratory
diagnostic techniques or ifit is inconsistent with the other substantial evidence in the case record."
Soc. Sec. R. 96-2p, 1996 WL 374188, at "'2. Indeed, "ifa 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; Gray v. Astrue, Civ. Act. No. CBD-lO-1304, 2011
WL 2912789, at "'3 (D. Md. July 15,2011) (quoting Craig).
When the medical opinions of the treating source are not given controlling weight, the
Regulations prescribe factors to be considered in determining the weight to be ascribed, including:
the length and nature ofthe treating relationship, the supportability ofthe opinions, their consistency
with the record, and any specialization ofthe provider. 20 C.F.R. § 404.l527(d)(2)-(6). An ALl's
decision ''must contain specific reasons for the weight given to the treating source's medical opinion,
supported by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and
the reasons for that weight." Soc. Sec. R. 96-2p, 1996 WL 374188, at "'5.
Similarly, the opinions ofpsychologists and physicians who examine a claimant are generally
entitled to more weight than those of such providers who did not perform an examination. See 20
C.F.R. § 404.1527(d)(I), (2); Soc. Sec. R.96-6p, 1996 WL 374180, at "'2 (July 2, 1996). The
weight ultimately attributed to medical opinions of nonexamining sources depends on the same
factors, to the extent applicable, used to evaluate the medical opinions oftreating sources. 20 C.F.R.
§ 404.1527(f). In addition, if applicable, the status of the nonexamining source (such as a state
5

agency medical consultant or medical expert used by the Commissioner) is to be considered. rd.
Unless the treating source's medical opinions are given controlling weight, the AU must explain in
his decision the weight given to the opinions of nonexamining sources as he must do for treating
source opinions. 20 C.F.R. § 404. 1527(t)(2)(ii).
The same factors used to determine the weight to be accorded the opinions ofpsychologists
and physicians, who are so-called "acceptable medical sources," apply to the opinions ofproviders
who are deemed to be at a different professional level, so-called "other sources," such as psychiatric
nurses. See Soc. Sec. R. 06-03p, 2006 WL 2329939, at *4-*5 (Aug. 9, 2006); see also 20 C.F.R.

§ 404.1527(d). As with opinions from psychologists and physicians, the ALJ "generally should
explain the weight given to opinions from these 'other sources,' or otherwise ensure that the
discussion ofthe evidence in the determination or decision allows a claimant or subsequent reviewer
to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome ofthe

case." Soc. Sec. R. 06-03p, 2006 WL 2329939, at *6.
Psychiatrist James A. Smith

m,

M.D., treated plaintiff for a depressive disorder from

December 2004 through the date ofthe AU's decision. R. at 19 ~ 5. In a medical source statement
dated May 20, 2008, id. at 127-31, Dr. Smith found that plaintiffhad moderate to marked limitations
in a range of specific mental abilities required for work, including marked limitation in his ability
to deal with the stress of semi-skilled and skilled work. rd. at 129 ~ 9.i. He also found that, on
average, plaintiffs impairments or treatment would cause him to be absent from work more than
three times a month. rd. at 128 ~ 8. As to functional limitations, the ALJ determined plaintiff to
have moderate restrictions of activities of daily living, marked difficulties in maintaining social
functioning, frequent deficiencies of concentration, persistence, or pace, and one or two episodes
of decompensation. rd. at 130 ~ 11. The ALJ stated that he gave little weight to Dr. Smith's
6

opinions. Id. at 21 ,5. Plaintiff contends that the ALJ erred in doing so because of Dr. Smith's
status as a treating source.
The court disagrees. The ALJ explained that "[Dr. Smith's] assessment is not supported by
the medical and other evidence and, in fact, it is contradicted by the record." Id. at 21. The ALJ then
gave four specific reasons for this determination. First, ''the medical records, including Dr. Smith's
own treatment notes, show that the claimant does not have persistent abnormalities on mental status
examinations." Id. at 21 ,5. Evidence supporting this finding include notes by Dr. Smith between
August 2005 and March 2008 describing plaintiff as "euthymic" (Le., characterized by moderation
ofmood, which is neither depressed nor manic) and as having other positive mental attributes, such
as appropriate affect. See id. at, ~ 132-53, 199-200,203-04,241-42. Second, "[claimant's]
condition has been responsive to medication." Id. at 21,5. Dr. Smith's treatment notes between
January and November 2007 support for this finding. Id. at 136 ("He is stable on his meds.") (Nov.
2007); 138 ("He remains stable on his ... antidepressant.") (Sept. 2007); 144 ("He is doing well on
his current meds.") (Jan. 2007). Third, the ALJ stated that plaintiff's "GAF [Global Assessment of
Functioning] ratings show only moderate impairment in function." Id. at 21 , 5. GAF scores for
plaintiff between August 2005 and March 2008 that ranged from 55 to 65 but were predominantly
at 60 3 support this determination. See id. at 133, 135, 137, 139, 141, 143, 145, 149,206,208,210.
Fourth, the ALJ reasoned that plaintiff's employment at Home Depot as a part-time electrical
assistant from March 2006 through the date of the hearing shows that he "is able to interact with
others during the course ofhis workday and he is required to sustain concentration, persistence, and

A GAF score of 55 to 60 indicates moderate symptoms or moderate difficulty in social,
occupational, or school functioning and a score of 65 only some mild symptoms or some difficulty
in social, occupational, or school functioning. Am. Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders, DSM-IV-TR 34 (4th ed. text rev. 2000).
3

7

pace in order to keep his job." Id. at 21; see id. at 546 (plaintiff's hearing testimony confirming
employment at Home Depot). Ibis determination finds support in Dr. Smith's September 2007 note
stating that plaintiff had not had any "challenges on the job" and plaintiff's wife's statement that
"change is not very discernable" in plaintiff's social interactions, which she described as "minimal"
prior to the alleged onset ofdisability. Id. at 123, 138. In sum, the ALJ adequately justified giving
little weight to Dr. Smith's opinions, and the ALJ's reasons are supported by substantial evidence.
As for psychiatric nurse Susan Simon, R.N., M.S.N., C.S., she treated plaintiff from April

2005 until at least October 2005. Id. at 463. In an assessment dated October 3, 2005, she found that

plaintiff has "impairments that affect his memory and ability to sustain concentration and focus on
accomplishing tasks in a timely manner." Id. She also found that plaintiff's depression "continues
to be resistive to the medications that have been tried so far." Id. In addition, she stated that plaintiff
has social difficulties in work-related settings. Id. The ALJ stated that he rejected Nurse Simon's
opinions for the same reasons that he gave Dr. Smith's opinions little weight. Id. at 21,5.
The court finds the ALJ's reasons and the underlying evidence sufficient to justify the ALJ' s
rejection ofNurse Simon's opinions. In particular, plaintiff's employment at Home Depot and the
medical evidence rebut the notion that plaintiff could not concentrate· sufficiently to work.
Moreover, the ALJ has limited plaintiff to simple, routine, and repetitive tasks to address his
limitations on concentration, persistence, and pace. See id. at 17; see also id. at 567,572.
The ALJ also gave little weight to the evaluation ofconsultative psychologist Ernest Akpaka,
Ph.D., who performed a one-time examination of plaintiff on March 16, 2006. Id. at 156-60. Dr.
Akpaka found, among other things, that plaintiff is significantly limited in his ability to perform
tasks requiring sustained concentration and persistence and to manage stress in the workplace. Id.

8

at 160. Plaintiff contends that the AU erred by not giving more weight to the opinions of Dr.
Akpaka because he is an examining source.
Ag~

the court disagrees. The AU explained that he gave Dr. Akpaka's opinions little

weight because they were "based on a one-time examination ofthe claimant and do[] not reflect the
longitudinal history." Id. at 21 ~ 5. As indicated, 20 C.F.R. § 404.l527(d)(l) recognizes that
opinions ofexamining sources are generally entitled to less weight than opinions oftreating sources.
The court interprets the ALl's reference to the longitudinal history to be an allusion to the same
reasons he cites as undermining the opinions of Dr. Smith-namely, plaintiff's lack of persistent
abnormalities on mental status exams, the responsiveness of his condition to medication, his OAF
scores, and his employment at Home Depot. As with Dr. Smith's opinions, these reasons are
sufficient to justify the ALl's evaluation ofDr. Akpaka's opinions and are supported by substantial
evidence. Indeed, Dr. Akpaka's central opinions-that plaintiff has significant limitations in
maintaining concentration and persistence, and in managing workplace stress-parallel similar
findings by Dr. Smith.
Finally, the ALl adequately explained why he gave greater weight to the opinions of state
agency consultants who did not examine plaintiff.

R. at 21.

Although the opinions of

nonexamining sources are generally entitled to less weight than those oftreating and other examining
sources, the AU lawfully gave the opinions greater weight because, as the AU found after
summarizing these opinions, they "are consistent with the longitudinal medical record." Id.; 20
C.F.R. § 404.l527(d)(4), (f); see Gray, 2011 WL 2912789, at *6 (upholding ALl's assignment of
greater weight to the opinions of consultative nonexamining physicians that plaintiff was not
disabled and discounting of the contrary opinions of plaintiff's treating physicians).

9

In sum, plaintiff's challenge to the weight the ALJ accorded the opinions discussed fails.
Because this challenge underlies his contention that the ALJ' s RFC detennination was improper, that
contention fails as well.

B.
Plaintiff also contends that the ALJ failed to include all of plaintiff's limitations in the
hypothetical he posed to the vocational expert. PI. Mem. Supp. Mot. J. Plead. 7. To be helpful, the
VE's opinion must be "in response to proper hypothetical questions which fairly set out all of [a]
claimant's impairments." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). A hypothetical
question is proper if it adequately reflects a claimant's RFC for which the ALJ had sufficient
evidence. Johnson v. Barnhart, 434 F.3d 650,659 (4th Cir. 2005). The vocational expert must
accept as true the RFC as determined by the ALJ. Hines v. Barnhart, 453 F.3d 559, 566 n.5 (4thCir.
2006).
Here, the hypothetical the ALJ gave the vocational expert included the same RFC he
determined plaintiff to have with the exception of one limitation whose omission plaintiff has not
challenged in this appeal. 4 Nonetheless, plaintiff argues that the hypothetical should have included
the limitation that plaintiff is significantly hindered in his ability to handle workplace stress, as found
by Dr. Smith and Dr. Akpaka. PI. Mem. Supp. Mot. J. Plead. 7. But the court has already found
that the ALJ's determination to give these opinions of Dr. Smith and Dr. Akpaka little weight is
supported by substantial evidence and otherwise lawful. Accordingly, the ALJ' s hypothetical to ALJ
the vocational expert was legally proper.

"The limitation in the RFC that the ALJ omitted from the hypothetical was that plaintiffavoid
working in environments with respiratory irritants. R. at 17, 567-68. It is not apparent that this
limitation would apply to any of the jobs the vocational expert identified as available to plaintiff.
In any event, plaintiff did not challenge this omission as part ofthis appeal.
10

C.

Finally, plaintiff challenges the AU's finding that plaintiff, as a diabetic, could work even
ifhe had to take unscheduled breaks lasting ordinarily 10 minutes potentially up to 20 minutes every
two hours to test his blood glucose. PI. Mem. Supp. Mot. 1. Plead. 7. Plaintiff relies on the
vocational expert's testimony to support his contention. However, the vocational expert testified
that for unskilled jobs, including the jobs she said were available to plaintiff, workers typically
received a morning and afternoon break ofabout 15 minutes each plus a lunch break. Id. at 569-70.
A few unscheduled breaks of a few minutes for trips to the restroom and comparable purposes are
also generally allowed. Id. at 570. Thus, the ALJ did not err in finding that these arrangements are
sufficient to accommodate plaintiff's blood-testing regimen. Furthermore, plaintiff's claim that his
blood testing can take up to 20 minutes is not corroborated by medical evidence. Accordingly, the
court rejects plaintiff's final challenge to the ALJ's decision.

IV.
The ALJ applied the proper legal standards and substantial evidence supports the decision.
Accordingly, the Commissioner's motion for judgment on the pleadings [D.E. IS] is GRANTED,
plaintiff's motion for judgment on the pleadings [D.E. 11] is DENIED, and the final decision ofthe
Commissioner is AFFIRMED.
SO ORDERED. This l.O. day of September 2011.

fu1; ...b."u

J
SC.DEVERll
United States District Judge

11