Kennedy v. Astrue

Filing 24

ORDER denying 16 Motion for Judgment on the Pleadings; granting 18 Motion for Judgment on the Pleadings; and, adopting 20 Memorandum and Recommendations. Signed by Chief Judge Louise Wood Flanagan on 03/08/09. Copies served electronically. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 5:08-CV-I I-FL

MELISSA S. KEN'NEDY, PlaintifT,
v.

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

) ) ) ) ) ) ) ) ) )

ORDER

This matter comes now before the court on the parties' cross-motions for judgment on the pleadings. (DE ## 16, 18.) On September 25, 2008, United States Magistrate Judge Robert B. Jones, Jr. issued memorandum and recommendation ("M&R") wherein it was recommended that this court deny plaintiffs motion and grant defendant's motion. Plaintiff filed objections to which defendant timely responded. In this posture, the issues raised are ripe for decision.

STATEMENT OF THE CASE
Plaintiffwas initially found disabled on June 2,1999, and awarded disability beginning April 14, 1999, for listing-level chronic renal failure. On March 7, 2003, plaintiff was determined to be under continuing disability; this is the most recent favorable action on plaintiff s disability claim, and
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it serves as the comparison point decision. At a continuing disability review conducted on

January 26, 2005, it was determined claimant was no longer disabled as of that date. and this determination was upheld upon reconsideration after a disability hearing by a state agency disability hearing officer.

On January 30, 2007, plaintiffappeared and testified at hearing before an Administrative Law Judge ("All"). Plaintiff was not represented by counsel at this hearing. On July 10, 2007, the AU issued a decision upholding the finding that plaintiffs disability ended on January 26, 2005. Plaintiff, having since retained counsel, requested review of the ALl's decision by the Appeals Council, submitting new evidence as part of the request. The Appeals Counsel made the new evidence part of the record, but ultimately denied plaintiffs request for review on November 6, 2007, thereby rendering the AU's decision the final decision ofthe Commissioner of Social Security ("Commissioner"). On January 9, 2008, plaintiff filed complaint in this court seeking review of that decision. In her motion for judgment on the pleadings, plaintiff contends that the AU's decision should be reversed on the grounds that the ALI erred by: I) failing to follow the "special technique" required for the assessment of mental impairment; 2) rejecting the opinions of plaintiffs treating physicians without providing persuasive contradictory evidence; 3) failing to comply with the process set forth in Craig v. Chater for evaluating a claimant's pain and other symptoms; and 4) failing to obtain the testimony of a vocational expert. In M & R entered September25, 2008, the magistrate j u d g e rejected plaintiffs arguments and recommended that this court grant defendant's motion for judgment on the pleadings. After careful consideration, for the reasons given below, the court adopts the recommendation of the magistrate judge. DISCUSSION
A. Standard of Review

The court may "designate a magistrate judge to conduct hearings ... and to submit to ajudge

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of the court proposed findings of fact and recommendations for the disposition" of a variety of motions, including motions for judgment on the pleadings. 28 U.S.C. § 636(b)(1 )(A)-(B). Upon careful review ofthe record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court is obligated to make de
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determinations of those portions of the M&R to which objections have

been filed. Id.; see also Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). This court is authorized to review the Commissioner's denial of benefits under 42 U.S.C. § 405(g). It must uphold the findings of the AU if they are supported by substantial evidence and were reached through application ofthe correct legal standard. l4,.; Craig v. Chater. 76 F.3d 585. 589 (4th. Cir. 1996). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389,401 (1971) (quoting Canso!. Edison Co. v. NLRB. 305 U. S. 197, 229 (1938)). "It consists of more than a mere scintilla ofevidence but may be somewhat less than a preponderance." Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). In its inquiry, the court may not "undertake to re-weigh conflicting evidence. make credibi lity determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. ApfeL 270 F.3d 171. 176 (4th Cir. 2001) (quoting Craig, 76 FJd at 589). "Ultimately, it is the duty of the administrative law j u d g e reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence." Hays v. Sullivan, 907 F.2d 1453,1456 (4th Cir. 1990). Even if the court disagrees with the commissioner's decision, the court must uphold it ifit is supported by substantial evidence and was reached through application of the correct legal standard. Id. With these principles in mind, and having benefit ofthe M&R, the court turns to the

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arguments at hand.

B. Plaintifrs M&R Objections
1. AU's assessment of plaintiffs mental impairments

Plaintiff argues that the M&R erred in finding that the AU followed the "special technique" set forth in 20 C.F.R. § 404.1520a for assessing plaintiffs's mental impairments because the AU did not employ a medical expert or psychologist. This "special technique" involves rating the degree of the claimant's functional limitation in the areas of (I) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of d e c o m p e n s a t i o n . 20 C.F.R.

§ 404.l520a(c)(3). As this was a continuing disability review case in which plaintiff was initially
found disabled due to a physical impairment, plaintiffs subsequently alleged mental impairment was only assessed at the hearing before the AU and not at the lower levels. Plaintiff maintains that the provision of the regulations that states "at the initial and reconsideration levels ... our medical and psychological consultant has overall responsibility for assessing medical severity," is indicative of a general policy that these experts must evaluate functional limitations with regard to mental impairment. See 20 C.F.R. § 404.1520a(e)(l). Accordingly. plaintiff argues, the provision that states, "[AJt the initial and reconsideration levels of the administrative review process. we will complete a standard document to record how we applied the technique" should be read to demand the completion of s u c h documentation, or at least the assistance of a medical expert or psychologist, in this case where the issue of mental impairment first arose before the ALl. See 20 C.F.R. § 404.1520a(e). Plaintiffs interpretation ofthe regulations ignores their specific guidance for the application of the "special technique" to assess mental impairment at the AU level. The same provision of t h e

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regulations cited by plaintiff states, "At the administrative law judge hearing and Appeals Council levels ... we will document application of the technique in the decision." Id. In a subsection, the regulations reiterate, "At the administrative law judge hearing and Appeals Council levels .. , the written decision must incorporate the pertinent findings and conclusions based on the technique." 20 C.F,R. § 404.1520a(e)(2). The regulations demand only that the technique be performed, not that a medical expert or psychologist perfoTIll it. Furthermore, the provision of the regulations that governs remand by the AU for assistance of a medical expert makes clear that remand is discretionary rather than mandatory if the services ofa medical expert are needed. See 20 C.F.R.

§ 404. I 520(a)( e )(3) ("lj"the administrative law judge requires the services of a medical expert to
assist in applying the technique but such services are unavailable, the administrative law judge may return the case to the State agency or the appropriate Federal component.") (emphasis added), Even more significantly, the clause "[i]f the administrative law judge requires the services of a medical expert to assist in applying the technique" necessarily contemplates that in some circumstances, an AU will not require the medical expert's services, Thus, it directly contradicts plaintiff s contention that the regulations "plainly recognize that AU's are laymen and that decisions concerning a claimant's mental functioning are to be made with the assistance of medical professionals." (PI.·s Obj, p. 2.) Accordingly, plaintiffs objection that the AU failed to follow the "special technique" because he failed to employ the services of a medical expert or psychologist expert is overruled. Furthermore, the court finds the AU complied with all the other requirements of applying the "special technique" as demanded by the regulations. (See M&R, pp. 9-12.)

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2.

AU's evaluation of treating physician opinions

Plaintiff objects to the M&R's finding that the AU did not err by not weighing the opinions of plaintiffs treating physicians more heavily than he did. In particular, plaintiff objects to the ALl's determination that the findings of the state agency physicians that plaintiff was capable of a full range of light work was more consistent with the evidence than the opinions of Dr. Rothman, who indicated plaintiff could perform less than a full range of sedentary work, and Dr. Smith, who indicated plaintiff could not perform the standing and walking requirements oflight work. Plaintiff contends that the M&R erred in affirming this determination while "providing no medical evidence or explanation for preferring the opinion of the non-examiner over the opinions of two treating physicians." (PI's Obj. p. 3.) The opinion of a treating physician is generally entitled to great weight. Nevertheless, the Fourth Circuit has held "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, 590 (4th Cir. 1996). Contrary to plaintiffs assertion, the M&R documents clinical evidence in the record, including treatment notes of Dr. Rothman and Dr. Smith, that does not support the limitations stated in their opinions. (See R. 224, 226, 228, 281, 291,293, 296, 302, 399.) Furthermore, the M&R documents the substantial evidence in the record, most notably plaintiffs responses to the disability questionnaire, that is inconsistent with those opinions. (See R. 494-98.) "An AU's determination as to the weight to be assigned to a medical opinion will generally not be disturbed absent some indication that the AU has dredged up specious inconsistencies or has not given good reason for the weight afforded a particular opinion." Koonce v. Apfel, 166 F.3d 1209, *2 (4th Cir. Jan 11, 1999). Upon independent review of the record, the

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court concludes that the ALl did not err by granting less than controlling weight to the opinions of Dr. Rothman and Dr. Smith, as the ALl sufficiently explained his decision to weigh the medical opinions as he did, and that decision is supported by substantial evidence. 3. ALl's compliance with Craig v. Chater

Plaintiff contends that the M&R erred in finding that the ALl's decision complied with the two-part process for determining whether a claimant is disabled by pain or other symptoms that the Fourth Circuit reiterated in Craig v. Chater, 76 F.3d 585 (4th Cir. 1996). In Craig, the court held that the AU must first expressly determine whether claimant's medical impairment could reasonably be expected to produce the pain or other symptoms alleged. ld. at 594. Only if that threshold has been satisfied does the ALl move o n to the second part ofthe analysis, w h i c h is an evaluation of the actual intensity and persistence of the pain or symptoms to determine if the claimant's subjective complaints are credible. Id. at 595. An ALl's failure to expressly consider the threshold question before moving on to considering claimant's credibility is cause for remand. ld. at 596. See also Robinson v. Astrue. 2008 WI. 4790387, +3 (E.D.N.C. October 23. 2008). Plaintiff argues the M&R erred in determining "the ALl's decision was sufficient because ALl clearly implied that [plaintiff! failed Craig Step One." (PI's Obj., p. 4.) Plaintiff misreads the M&R, and thus her objection is without merit. Indeed, the M&R states, correctly, that the AU determined claimant satisfied the first step of the Craig analysis. (\1&R p. 16.) Furthermore, the AU made this determination expressly, stating that "c1aimant' s medically determinable impairments present as of January 26, 2005 could have reasonably been expected to produce some of the alleged symptoms." (R. 18.) In accordance with Craig, only then did the ALl proceed to the credibility analysis, finding that "claimant's statements concerning the intensity, persistence and limiting effects

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of these symptoms are not entirely credible." (Id.) The ALl may consider all available evidence in making this credibility determination, and as discussed in the M&R, there is substantial evidence in the record to support the ALl's decision. Thus, the court finds the ALl complied with the Craig twostep process for determining whether a claimant is disabled by pain or other symptoms. 4. Failure to obtain the testimony of a vocational expert

Plaintiff objects to the finding in the M&R that the ALl was not required to consult a vocational expert ("VE"). If a claimant has no non-exertional impairments that prevent her from performing the full range of work at a given exertional level, the ALl may rely solely on the Medical-Vocational Guidelines ("Guidelines") to determine whether there are jobs in the national economy which the claimant can perform. See Gory v. Schweiker, 712 F.2d 929,930 (4th Cir. 1983). In light of this, the Fourth Circuit has stated, "The guidelines do not take into account nonexertionallimitations such as pain, loss ofhearing, loss of manual dexterity, postural limitations and pulmonary impairment. When nonexertionallimitations such as these occur in conjunction with exertionallimitations, the guidelines are not to be treated as conclusive." Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987). When an ALl is thus forbidden to rely solely on the Guidelines, the Commissioner must prove by expert vocational testimony that the claimant retains the ability to perform specific jobs which exist in the national economy. Walker v. Bowen, 889 F.2d 47,50 (4th Cir. 1989). Plaintiff contends that the M&R's determination that a VE was not necessary rests on the inaccurate premise that the ALl found claimant did not suffer from significant non-exertional limitations. More particularly, plaintiff contends that the ALl's finding that claimant was limited to unskilled light work equates to a finding of non-exertional limitations. The Fourth Circuit's

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holding in Coffman indicates the determinative factor as to whether a vocational expert is necessary is whether the Guidelines take into account all of plaintiffs limitations. With regard to the AU's detemlination in this case that claimant was limited to unskilled light work, the section of the regulations concerning the Guidelines specifically states, "[I]n promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at various functional levels (sedentary, light, medium, heavy, and very heavy)." 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(b). The Guidelines take into account whether a claimant is limited to unskilled labor, and therefore, the AU did not err in relying on them without consulting aVE. CONCLUSION After thorough review ofthe record in this case, this court tinds that the AU's findings are supported by substantial evidence. Forthc foregoing reasons, plaintiffs objections to the M&R are OVERRULED. The court hereby ADOPTS such recommendation as its own, and, for the reasons already discussed, defendant's motion (DE # 18) is GRANTED, and plaintiffs motion (DE # 16) is DENIED. The clerk of court is directed to close the case. SO ORDERED, this the

tel--

day of March, 2009.

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