Rivera v. Colvin
ORDER denying 22 Motion for Judgment on the Pleadings; granting 24 Motion for Judgment on the Pleadings; and declining to adopt 26 Memorandum and Recommendation - Signed by District Judge Louise Wood Flanagan on 09/22/2014. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
KRISTI ELIZABETH RIVERA,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
This matter comes before the court on the parties’ cross motions for judgment on the
pleadings (DE 22, 24). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge Kimberly A. Swank issued a memorandum and
recommendation (“M&R”), wherein it is recommended that the court grant plaintiff’s motion, deny
defendant’s motion, and remand for further proceedings. Defendant timely filed an objection to the
M&R and the response time has expired. In this posture, the issues raised are ripe for ruling. For
the reasons that follow, the court declines to adopt the recommendation of the magistrate judge and
affirms the decision of the Commissioner.
Plaintiff filed applications for disability insurance benefits and supplemental security income,
alleging disability beginning June 30, 2006. The applications were denied initially and upon
reconsideration. A hearing was held on February 16, 2012, before an Administrative Law Judge
(“ALJ”) who determined that plaintiff was not disabled during the relevant time period in a decision
dated April 5, 2012. The appeals council denied plaintiff’s request for review on May 13, 2013, and
plaintiff filed the instant action on July 16, 2013.
Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner’s final
decision denying benefits. The court must uphold the factual findings of the ALJ “if they are
supported by substantial evidence and were reached through application of the correct legal
standard.” 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) (quotations omitted). The standard is met by “more
than a mere scintilla of evidence but . . . less than a preponderance.” Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966).
To assist it in its review of the Commissioner’s denial of benefits, the court may “designate
a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and
recommendations for the disposition [of the motions for judgment on the pleadings].” See 28 U.S.C.
§ 636(b)(1)(B). The parties may object to the magistrate judge’s findings and recommendations,
and the court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. § 636(b)(1). Upon careful
review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.
The ALJ’s determination of eligibility for Social Security benefits involves a five-step
sequential evaluation process, which asks whether:
(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a
medical impairment (or combination of impairments) that are severe; (3) the
claimant’s medical impairment meets or exceeds the severity of one of the
impairments listed in [the regulations]; (4) the claimant can perform [his] past
relevant work; and (5) the claimant can perform other specified types of work.
Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The
burden of proof is on the claimant during the first four steps of the inquiry, but shifts to the
Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ
found that plaintiff was no longer engaged in substantial gainful employment. At step two, the ALJ
found that plaintiff had the following severe impairments: bipolar disorder, generalized anxiety
disorder, and attention deficit disorder. However, at step three, the ALJ further determined that
these impairments were not severe enough to meet or medically equal one of the listings in the
regulations. Prior to proceeding to step four, the ALJ determined that during the relevant time
period plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all
exertional levels with the following non-exertional limitations: simple, routine, repetitive tasks with
no interaction with the general public and only occasional interaction with co-workers and
supervisors; and low stress setting with only occasional decision making and occasional changes in
the work setting in a low production rate environment. In making this assessment, the ALJ found
plaintiff’s statements about her limitations not fully credible. At step four, the ALJ concluded
plaintiff was not capable of performing her past relevant work. At step five, upon considering
testimony of a vocational expert (“VE”), the ALJ determined that there were jobs that existed in
significant numbers in the national economy that plaintiff is capable of performing.
Plaintiff argues that the ALJ erred in two respects: (1) the ALJ erred by failing to accord the
treating psychiatrist’s opinion controlling weight, and (2) the vocational expert’s testimony was
based upon a legally impermissible hypothetical question. The M&R determined that the first
argument warranted remand, and did not reach plaintiff’s second argument. Defendant objects to
the determination in the M&R that plaintiff’s first argument warrants remand. The court,
accordingly, addresses plaintiff’s arguments de novo.
Treating psychiatrist opinion
On January 10, 2011, plaintiff’s treating psychiatrist, Dr. Ash Mikhail, signed a medical
source statement rating plaintiff’s capabilities. Dr. Mikhail opined that plaintiff suffered from
marked or extreme loss in a number of work-related mental activities, including: ability to
understand and remember short and simple instructions, ability to understand detailed instructions,
carrying out instructions, maintaining attention for lengthy periods of time, working in coordination
and proximity to others, making simple work-related decisions, completing a normal work day or
week without interruptions from psychological symptoms, and performing at a consistent pace
without an unreasonable number and length of rest periods. (Tr. 576-77). In addition, he opined that
plaintiff can be expected to miss work more than three days every month. (Tr. 576).
The ALJ assigned “little weight” to the opinion of Dr. Mikhail “because the claimant’s
treatment record does not support that she should be so limited.” (Tr. 21) “In fact,” the ALJ
reasoned, “the record shows that the claimant is stable on medication,” referencing “Exhibits 8F and
11F” for this proposition. (Id.).
When making an RFC assessment, an ALJ “must always consider and address medical
source opinions.” SSR 96-8p, 1996 WL 374184, at *7. Generally, a treating physician’s opinion
should be accorded greater weight than the opinion of a non-treating physician’s opinion, but the
court is not required to give the testimony controlling weight in all circumstances. See Mastro v.
Apfel, 270 F. 3d 171, 178 (4th Cir. 2001). A treating physician’s opinion on the nature and severity
of a claimant’s impairment is given controlling weight if it is “supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence on the record.” Id.; see also 20 C.F.R. § 404.1527(c)(2). “[B]y 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.” Mastro, 270 F.3d at 178
(quoting Craig, 76 F.3d at 590) (internal quotation marks omitted). Thus, the ALJ has the discretion
to give less weight to the treating physician’s testimony in the face of contrary evidence. Id.
Plaintiff argues that substantial evidence did not support the ALJ’s determination that
plaintiff was “stable on medication” and that the treatment record does not support the limitations
described in Dr. Mikhail’s opinion. In reviewing whether substantial evidence supports an ALJ’s
determination, the court must not “undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro, 270 F.3d at 176
(quoting Craig, 76 F.3d at 589). “Ultimately, it is the duty of the administrative law judge reviewing
the 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).
In this case, the ALJ’s reasons for giving less weight to Dr. Mikhail’s opinion are amply
supported by substantial evidence in the record. As discussed in great detail by the ALJ, Dr.
Mikhail’s treatment notes and clinical records contained in Exhibit 8F and Exhibit 11F of the record
provide support for a finding that plaintiff’s mental condition is stable with medication, and that
limitations beyond that described in the RFC determination are not warranted.
In particular, a number of treatment notes covering the period from February 2008 to April
2011 describe plaintiff’s condition while taking medication as stable, euthymic, doing well, or with
no problems with anxiety attacks. (Tr. 527, 531-535, 537, 541, 543, 545, 553, 591-94). By contrast,
several records state that plaintiff’s condition worsened when she was off her medication, (Tr. 566,
588-89), but was stable again after medication (Tr. 565), or that plaintiff was seeking to return to
medication. (Tr. 588). This provides “more than a mere scintilla of evidence” supporting the ALJ’s
findings. Laws, 368 F.2d at 642.
Plaintiff argues that the ALJ’s findings as to the stability of her mental condition are
undermined by conflicting or contrary evidence in the record showing some instances of increased
anxiety, sleeplessness, panic attacks, and mood swings, despite medication.
conflicting evidence exists in the record regarding the level of stability of plaintiff’s condition, and
the limitations resulting therefrom. (See, e.g., Tr. 545, 595, 547, 551-52). As noted above, however,
it is not the province of the court to “undertake to re-weigh conflicting evidence,” Mastro, 270 F.3d
at 176, or to make “findings of fact and to resolve conflicts in the evidence.” Hays, 907 F.2d at
Rather, it is the ALJ’s duty to do so, and to explain how conflicts in the evidence were
resolved. In particular, the ALJ must “explain how any material inconsistencies or ambiguities in
the evidence in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7
(July 2, 1996). In this case, the ALJ addressed conflicting evidence in the record in sufficient detail
to enable meaningful review of the ALJ’s findings of fact.
For example, the ALJ discussed treatment reports in February 2008 describing plaintiff’s
mood as anxious with a depressed affect, but that mood had improved with medication by April
2008. (Tr. 19-20). The ALJ noted that plaintiff’s “anxiety went up after the birth of her daughter,”
but that notes indicate she was better by August 2009. (Tr. 20). The ALJ noted that plaintiff had
experienced increased symptoms in October 2011, but that these followed a period off medication.
(Tr. 20). The ALJ recognized continuing difficulties with symptoms in December 2011, but also
noted a lapse in medication (Id.). The ALJ also noted testimony by plaintiff and her mother, but
considered these in conjunction with additional factors bearing on the extent of plaintiff’s
limitations, including failure to attend therapy as recommended, evidence regarding daily activities,
and prior work history. (Id.).
This discussion sufficiently explains how conflicts in the evidence were resolved to arrive
at the ALJ’s RFC determination.1 Accordingly, remand for the purposes of further analysis or
explanation of the conflicting evidence in the record is not warranted.
It is in this respect, in particular, that the court departs from the analysis in the M&R, which determined contrary to
the discussion in the ALJ opinion that “[t]he ALJ made no mention of Claimant’s on-again, off-again pattern of
symptoms in finding Claimant’s condition to be ‘stabilized.’” (M&R at 12). Indeed, as noted above, the ALJ did in fact
make mention of plaintiff’s variations in symptoms in finding plaintiff’s condition to be stable with medication.
The ALJ’s posed the following hypothetical question to the vocational expert at hearing in
Please assume a hypothetical individual of the claimant’s age, education, and work
background, who has no exertional limitations. Non-exertionally, the individual is
limited to simple, routine, repetitive tasks, with no interaction with the general
public, and only occasional interaction with co-workers and supervisors. The job
should be in a low stress setting, defined as having only occasional decision-making,
and occasional changes in the work setting. The job should be in a low production
rate environment. Could such a hypothetical individual perform the past work of this
claimant? . . . . Would there be other jobs performable in the labor market?
(Tr. 60). The vocational expert answered in the affirmative as to the latter question. (Id.). Plaintiff
contends this question was insufficient because it failed to include the marked limitations in areas
such as maintaining attention and concentration, interruptions, performing at a consistent pace,
responding to criticism from supervisors, and getting along with co-workers, all as set out in the
opinion of Dr. Mikhail.
A hypothetical question, however, is proper if it adequately reflects a claimant’s RFC for
which the ALJ had sufficient evidence. See Johnson, 434 F.3d at 659 (determining hypothetical
question was valid where it adequately reflected plaintiff’s RFC as determined by the ALJ from
substantial evidence in the record). Here, the hypothetical question in this case tracked plaintiff’s
limitations as set out in the ALJ’s RFC determination, which was supported by substantial evidence
in the record.
In particular, in addition to the evidence noted above for giving little weight to the opinion
of Dr. Mikhail, substantial evidence supported the ALJ’s determination that plaintiff was capable
of doing simple, routine tasks, in a low stress setting, with occasional interaction with coworkers and
occasional decision making. For instance, Dr. Strobel-Nuss and Dr. Herrera stated plaintiff is
capable of performing simple, routine tasks (Tr. 490, 508); plaintiff was able to work until 2011 (Tr.
39, 289-290, 454); plaintiff was capable of driving herself (Tr. 51, 419, 422); and plaintiff provides
some care for her children (Tr. 57). Substantial evidence in the record therefore supports the ALJ’s
RFC determination. Accordingly, the ALJ did not err by failing to include in the hypothetical
question the marked limitations noted in Dr. Mikhail’s opinion.
Based on the foregoing, upon de novo review of the arguments raised, and upon considered
review of the record, the court declines to adopt the recommendation of the magistrate judge,
DENIES plaintiff’s motion for judgment on the pleadings (DE 22), GRANTS defendant’s motion
for judgment on the pleadings (DE 24), and AFFIRMS the final decision by defendant. The clerk
is directed to close this case.
SO ORDERED, this the 22nd day of September, 2014.
LOUISE W. FLANAGAN
United States District Judge
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