Zurn v. Berryhill

Filing 31

ORDER denying 27 Motion for Judgment on the Pleadings and granting 29 Motion for Judgment on the Pleadings. Signed by US Magistrate Judge Robert B. Jones, Jr. on 11/5/2018. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:17-CV-122-RJ

A.ARON MICHAEL ZURN,
Plaintiff/Claimant,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the court on the parties' cross-motions for judgment on the pleadings
[DE-27, DE-29] pursuant to Fed. R. Civ. P. 12(c). Claimant Aaron Michael Zurn ("Claimant")
filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the
denial of his application for a period of disability and Disability Insurance Benefits ("DIB"). The
time for filing responsive briefs has expired, and the pending motions are ripe for adjudication.
Having carefully reviewed the administrative record and the motions and memoranda submitted
by the parties, Claimant's Motion for Judgment on the Pleadings is denied, Defendant's Motion
for Judgment on the Pleadings is allowed, and the final decision of the Commissioner is affirmed.

I. STATEMENT OF THE CASE ·
Claimant filed an application for a period of disability and DIB on October 8, 2015, 1
alleging disability beginning September 17, 2014. (R. 21, 182-88). His claimwas denied initially
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1 October 8, 2015 is the date listed on the application.
(R. 182-88). However, the Disability Determination
Explanation at both the initial and reconsideration levels as well as the ALJ decision state that Claimant's application
was filed on September 29, 2015. (R. 21, 76, 93). The reason for this discrepancy is unknown. In any case,' the
discrepancy does not impact the court's decision in this case.

and upon reconsideration. (R. 76-109). A hearing before the Administrative Law Judge ("ALJ")
was held on June 16, 2016, at which Claimant, represented by counsel; a witness; and a vocational
expert ("VE") appeared and testified. (R. 45-75). On December 28, 2016, the ALJ issued a
decision denying Claimant's request for benefits. (R. 18-39). Claimantthen requested a review
of the ALJ's decision by the Appeals Council, (R. 15), and he submitted additional evidence as
part of his request. (R. 16, 363-65). After reviewing and incorporating the additional evidence
into the record, the Appeals Council denied Claimant's request for review on April 28, 2017. (R.
1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative
decision.

II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under
the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether
substantial evidence supports the Commissioner's factual findings and whether the decision was
reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d
514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to arty fact, if supported by
substantial evidence, shall be conclusive ...." 42 U.S.C. § 405(g). Substantial evidence is
"evidence which a reasoning mind would accept as sufficient to support a particular conclusion."

Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large
or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more
than a mere scintilla ... and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In
reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute [its] judgment for that of the
[Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chafer, 76
2

F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R.
§ 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is
limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her
findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438, 439-40 (4th Cir. 1997).

III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set
forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently
working; and (2) must have a "severe" impairment that (3) meets or exceeds [in
severity] the "listings" of specified impairments, or is otherwise incapacitating to
the extent that the claimant does not possess the residual functional capacity to (4)
perform ... past work or (5) any other work.

Albrightv. Comm 'r ofthe SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails
at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chafer, 65
F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the
first four steps of the inquiry rests on the claimant. Id At the fifth step, the burden shifts to the
ALJ to show that other work exists in the national economy which the claimant can perform. Id
When assessing the severity of mental impairments, the ALJ must do so in accordance with
the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c). This regulatory scheme
identifies four broad functional areas in which the ALJ rates the degree of functional limitation
resulting from a claimant's mental impairment(s): activities of daily living; social functioning;
concentration, persistence or pace; and episodes of decompensation. Id § 404.1520a(c)(3). The
ALJ is required to incorporate into her written decision pertinent findings and conclusions based
on the "special technique." Id § 404.1520a(e)(3 ).
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In this case, Claimant alleges the ALJ erred by failing to give proper weight to his treating
providers' medical opinions and to the Department of Veterans Affairs ("VA") decision awarding
Claimant a disability rating of one hundred percent. Pl.' s Mem. [DE-28] at 5-9.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not
disabled" as defined in the Act. (R. 21). At step one, theALJ found Claimant had not engaged in
substantial gainful employment since his alleged onset date. (R. 23). At step two, the ALJ
determined Claimant had the following severe impairments: status post intracranial injury,
posttraumatic stress disorder (PTSD),

~educed

hearing, and a history of alcohol abuse.

Id.

However, at step three, the ALJ concluded these impairments were not severe enough, either
individually or in combination, to meet or medically equal one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. 24). Applying the technique prescribed by the
regulations, the ALJ found that Claimant's mental impairments have resulted in moderate
limitations in his activities of daily living, social functioning, and concentration, persistence, and
pace, with no episodes of decompensation. (R. 24--:-25).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had
the ability to perform light work2 with the following limitations: he can never climb ladders, ropes,
and scaffolds; he must avoid concentrated exposure to noise, fumes, odors, dusts, gases, other
respiratory irritants, and workplace hazards; and he is limited to unskilled work with no interaction

2
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability
to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary
work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods
oftime. 20 C.F.R. § 404.1567(b).

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with the public and no team-type interaction with co-workers. (R. 26). The ALJ found he cannot
perform production-pace work but can perform goal-oriented work. Id. In making this assessment,
theALJ found Claimant's statements about his limitations not entirely consistent with the evidence
of record. (R. 27-28).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements
of his past relevant work in the military. (R. 38). Nonetheless, at step five, upon considering
Claimant's age, education, work experience, and RFC, the ALJ detemiined Claimant is capable of
adjusting to the demands of other employment opportunities that exist in significant numbers in
the national economy. Id.
V. DISCUSSION

A.

The Medical Opinion Evidence
Claimant contends that the ALJ erred by failing to give appropriate weight to the opinions

of his treating providers. PL 's Mem. [DE-28] at 5. Specifically, Claimant makes three arguments:
first, that the ALJ did not give appropriate weight to the opinion of E.M. Collins, a nurse
practitioner; second, that the ALJ did not give appropriate weight to the opinion of Dr. Gobalez;
and third, that the ALJ did not properly consider the opinion of VA treating providers that the
Claimant was unfit for military duty. Pl.'s Mem. [DE-28] af 2, 7. The court disagrees with each
of Claimant's arguments.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R.

§ 404.1545(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received.
Id. § 404.1527(c). 3 In general, the ALJ should give more weight to the opinion of an examining

~The rules for evaluating opinion evidence for claims filed after March 27, 20,17, are found in 20 C.F.R.
§ 404.1520c, but 20 C.F.R. § 404.1527 still applies in this case.

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medical source than to the opinion of a non-examining source. Id § 404.1527(c)(1 ). Additionally, ,
more weight is generally given to opinions of treating sources, who usually are most able to
provide "a detailed, longitudinal picture"' of a claimant's alleged disability, than non-treating
sources such as consultative examiners. Id § 404.1527(c)(2). When the opinion of a treating
source regarding the nature and severity of a claimant's impairments is "well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence," it is given controlling weight. Id However, "[i]f a physician's opinion
is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should
be accorded significantly less weight." Craig, 76 F.3d at 590.

If the ALJ determines that a treating physician's opinion should not be considered
controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking
into account the following non-exclusive list: (1) whether the physician has examinedthe applicant,
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(2) the treatment relationship between the physician and the applicant, (3) the supportability of the
physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the
physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R.
I

'

§ 404.1527). The weight afforded such opinions must be explained. S.S.R. 96-2p, 1996 WL
374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1 (July 2, 1996). 4 AnALJ may
not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05- ·
CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to
consider a physician's opinion (particularly a treating physician) or to discuss the weight given to
that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870,

4 Rulings 96-2p and 96-6p were rescinded, effective March 27, 2017, and therefore stili apply to this claim. 82 Fed.

Reg. 15263-01 & 15263-02 (Mar. 27, 2017).

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at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted).

1.

The Opinion of E.M. Collins, FNP-BC

Claimant first contends the ALJ improperly weighed the opinion of E.M. Collins
("Collins"), a VA nurse practitioner who evaluated Claimant on May 27, 2016. Pl.'s Mem. [DE28] at 2, 7. Collins prepared a Mental Residual Functional Capacity Statement in which she opined
that Claimant's pain and stress were constantly severe enough to interfere with the attention and
concentration needed to perform simple work tasks, that he needed to lie down about two hours
during an 8-hour work day, that he could only stand for forty five minutes or walk for ten minutes
before needing to sit or lie down, that he could only sit for two hours and stand or walk for less
than one hour, that he would need to take daily breaks to sit or lie down, that he would be off task
for more than thirty percent of a work day, that he would be absent from work more than five days
per month, and that he would be unable to complete a work day more than five days per month.
(R. 352-55). Collins also opined that Claimant would be unable to obtain and retain work in a
competitive work environment. (R. 355).
The ALJ stated that she accorded Collins' s opinion little weight because "the extreme
physical limitations described in this statement are unsupported by medical imaging, findings on
physical examinations of the claimant, and the claimant's subjective allegations. The medical
evidence ·of record shows only rare treatment of physical impairments." (R. 36). Indeed, here the
record shows, as cited by the ALJ, an examination in April 2015 of Claimant's shoulders, knees;
neck, headaches, back pain, and hips that indicated "no more than mild objective abnormalities"
and a February 2016 assessment that Claimant could "lift and carry 50 pounds occasionally and
'25 pounds frequently, sit for 6 hours in an 8-hour day, and stand and walk for up to 6 hours in an
8-hour day." (R. 28, 34).

Claimant has extensive treatment records for PTSD and alcohol
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dependence, but very little evidence speaks to his physical limitations. (R. 26-38). The ALJ
thereby sufficiently explained that she discounted the opinion because it was not supported by
evidence. See Craig, 76 F.3d at 590 (holding that an ALJ may give an opinion little weight if it "is
not supported by clinical evidence [and] it is inconsistent with other substantial evidence.").
Additionally, Collins's opinion was noted on a check-box form, so the ALJ was entitled to
give it less weight than a narrative opinion. See Schaller v. Colvin, No. 5: 13-CV-334-D, 2014 WL
4537184, at *16 (E.D.N.C. Sept. 11, 2014) ("[S]ince the opinion is in-the form of a questionnaire,
theALJ was entitled to assign it less weight than a fully explanatory and narrative opinion because
such form opinions do not offer adequate explanation of their findings."); Whitehead v. Astrue, No.
2:10-CV-35-BO, 2011 WL2036694, at *9-10 (E.D.N.C. May24, 2011) (determiningthatacheckbox form completed by a treating physician was not entitled to controlling weight where it was
inconsistent with the physician's own treatment notes and gave no explanation or reasons for the
findings). Here, Collins's form opinion is inconsistent with the evidence cited by the ALJ from
Claimant's April 2015 and February 2016 evaluations of his physical limitations.
The ALJ sufficiently, explained that Collins's opinion of Claimant's dire physical
limitations was inconsistent with the medical evidence, and her decision to afford the opinion little
weight was supported by substantial evidence. The ALJ did not err in discounting Collins's
opinion.

2.

The Opinion of Dominador Gobalez, M.D.

Claimant next argues that the ALJ improperly weighed the opinion of Dr. Gobalez, a VAbased provider who evaluated Claimant in June 2016. Pl.'s Mem. [DE-28] at 2, 7. Dr. Gobalez
noted that Claimant's medications helped, his mood was overall improved, he exhibited good
impulse control and judgment, he had insight, and he had no acute safety issues. (R. 2106). Dr.
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Gobalez. prepared a Mental Residual Functional Capacity Statement in which he opined that
Claimant's mental impairments precluded work performance for fifteen percent or more of an eight
hour work day and that he would be off task for more than thirty percent of a work day. (R. 35658). Dr. Gobalez also stated that Claimant's prognosis was "fair to good based on one-time
assessment today-will need continued medications/treatment." (R. 356). Dr. Gobalez wrote that
his answers were "based on appointment evaluation for purposes of treatment only, not for
disability evaluation." (R. 359).
The ALJ stated that she accorded the opinion little weight because "it is inconsistent with
the generally unremarkable mental status examination documented by Dr. Gobalez," it "fails to
document even subjective complaints by the claimant and his wife consistent with the extreme
limitations described in this opinion," and it "was not to be used for purposes of disability
evaluation." (R. 33).
The ALJ sufficiently explained why she discounted Dr. Gobalez's opinion. Like Collins's
opinion, Dr. Gobalez's opinion "is not supported by clinical evidence [and] it is inconsistent with
other substantial evidence." Craig, 76 F.3d at 590. His statements regarding Claimant's ability to
perform work tasks were inconsistent with his own observations of Claimant's improved mood,
impulse control, judgment, and insight, as well as his opinion that Claimant would continue to
improve with medication and that his prognosis was fair to good. (R. 33). Furthermore, Dr.
Gobalez's opinion is inconsistent with a February 2016 evaluation conducted by Dr. Ken Wilson.
(R. 33-34). Dr. Wilson found that Claimant "was capable of performing simple, routine, repetitive
tasks in a low-stress, low production setting." (R. 34). The ALJ's decision to afford little weight
to Dr. Gobalez's statements was supported by· substantial evidence, and she did not err in
discounting the opinion.
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3.

Claimant's Unfitness for Military Duty

Third, Claimant contends that the ALJ erred in giving little weight to his mental health
treatment from February 2015 to October 2015 showing his unfitness for military duty. PL' s Mem.
[DE-28] at 7. He argues that the ALJ improperly elevated the opinions of agency examiners over
those treating physicians. Id Generally, a treating provider's opinion ought to be given more
weight than an agency examiner. 20 C.F.R. § 404.1527(c)(2). However, a treating provider's
opinion may be discounted if it is inconsistent with other evidence. Craig, 76 F.3d at 590.
In February 2015, Claimant was evaluated by Robin Logan, Ph.D., a neuropsychologist.
(R. 1113-21 ). Dr. Logan concluded that Claimant was unfit for military duty because of his
attention and concentration difficulties stemming from his ADHD, PTSD, alcohol dependence,
and sleep disturbance. (R. 1117-18).
The ALJ summarized Dr. Logan's evaluation and gave it "some weight," concluding that
Claimant could not perform his past relevant work. (R. 29). She also concluded that Dr. Logan's
observations "support the inclusion of a restriction to the performance of unskilled, non-production
pace work." Id The ALJ did not disregard Dr. Logan's evaluation; rather, she relied upon it in
her formulation of the RFC, and the limitation to unskilled, non-production paced work is
consistent with an unfitness for military duty. The ALJ appropriately considered Dr. Logan's
opinion in accordance with 20 C.F.R. § 404.1527(c)(2).
In March 2015, Claimant was hospitalized for four days of inpatient psychiatric treatment.
(R. 564). The same month, he was evaluated by Abby Saunders, Psy. D. Dr. Saunders opined that
Claimant "is likely to have severe impairment in social and occupational functioning" because of
his PTSD and Alcohol Use Disorder, but "symptoms of PTSD can wax and wane over time," so
the severity of Claimant's impairment may change. (R. 473).
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The ALJ stated that she gave Dr. Saunders's opinion "partial weight," noting that Dr.
Saunders's use of the word "severe" was "not a vocationally relevant term" and that the ALJ's
formulated RFC is limited in accordance with Claimant's social and occupational restrictions
described by Dr. Saunders. (R. 30). Again, the ALJ does not discount Dr. Saunders's opinion;
rather, she explains that the terminology used by Dr. Saunders carries a different meaning than it
I

would in a disability analysis, and she notes that the RFC accommodates the restrictions observed
by Dr. Saunders. The ALJ properly weighed Dr. Saunders's opinion.
The ALJ further discussed the medical evidence from May 2015 to January 2016 showing
that Claimant was unfit for military duty. R. 29-32. In February 2016, Claimant was found
eligible for medical retirement from the military. R. 32. The ALJ gave weight to the opinions of
treating providers, concluding that Claimant could not perform his past relevant work in the
military. R. 29. She also concluded that Claimant could manage light work, relying on the opinion
of Heather Shibley, M.D., who opined that Claimant's symptoms would improve with treatment
and that he could perform a low-stress job after completing a residential program. R. 31, 986-89.
Claimant did complete a nine and a half week intensive residential treatment program focused on
PTSD symptoms. R. 571. Thus, the ALJ' s finding that Claimant cannot work as an infantryman
but can perform light, low-stress work is supported by substantial evidence.

B.

The VA Disability Rating
Claimant contends that'the ALJ erred in giving little weight to his 100% VA disability rating.

Pl.'s Mem. [DE-28] at 5. The court disagrees.
In Bird v. Commissioner, the Fourth Circuit noted that "both the VA and Social Security
programs serve the same governmental purpose of providing benefits to persons unable to work
because of a serious disability." 699 F.3d 337, 343 (citation omitted). "Thus, ... in making a
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disability determination, the SSA must give substantial weight to a VA disability rating" unless the
record clearly demonstrates that a lesser weight is appropriate. Id ("[B]ecause the SSA employs
its own standards for evaluating a claimant's alleged disability ... an ALJ may give less weight to
a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is
appropriate.").
The ALJ acknowledged Bird, and she explained why she gave only partial weight to
Claimant's disability rating:
As explained in this decision, the medical evidence of record in this case supports
reducing the VA disability rating to PARTIAL weight given the opinions of SSA's
examiners, the claimant's alcohol abuse being in remission and the VA's treatment
notes. Indeed, in assessing the weight to give to a VA disability rating, it is
imperative to review and assess the evidence of record from the VA' s own treatment
notes. In this case, the overall evidence indicates the claimant is capable of work
within the residual functional capa_city given in this decision.
Specifically, as discussed in more detail above, the evidence shows that the
claimant has intermittently demonstrated mental symptoms of anxiety,
hypervigilance, irritability, sleep disturbance, and attention and concentration
difficulty. However, on many other occasions, mental status examinations revealed
no objective evidence of these mental symptoms. Both the claimant and his wife
reported that he showed significant improvement following the residential
treatment program. Military and VA examiners concluded that claimant was unable
to continue to perform his work in the military, but generally anticipated that his
symptoms would improve in a less stressful setting. Even the claimant expressed
on several occasions that he intended to further his education or seek vocational
rehabilitation to pursue employment in another occupation after his military
discharge.

(R. 37).
The ALJ fully considered Claimant's evidence of PTSD, including Claimant's testimony,
the medical records from the VA, the VA disability rating, and the opinion evidence, and it is not
the court's role to re-weigh evidence. Mastro, :270 F.3d at 176 (citing Craig, 76 F.3d at 589).
Further, the ALJ sufficiently explained her reasoning, concluding Claimant's PTSD symptoms had

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improved with treatment. (R. 37). TheALJ imposed restrictive conditions in the RFC to account
for Claimant's PTSD, requiring unskilled work in a low-stress environment, no interaction with
the public, and no team-type interaction with co-workers. (R. 19). Thus, theALJ's decision not
to give substantial weight to the VA disability rating is supported by substantial evidence.
VI. CONCLUSION
For the reasons stated above, Claimant's Motion for Judgment on the Pleadings [DE-27]
is DENIED, Defendant's Motion for Judgment on the Pleadings [DE-29] is ALLOWED, and
Defendant's final decision is affirmed.
Submitted, this the 5th day of November, 2018.

le 4- '#.N

~ob~rt B. Jones, J;

~

United States Magistrate Judge

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