CHAMBERS v. ASTRUE
Filing
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MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE that the Commissioner's decision finding no disability be AFFIRMED. re 10 MOTION for Summary Judgment filed by SHEILA R. CHAMBERS be DENIED, 12 MOTION for Judgment on the Pleadings filed by MICHAEL J. ASTRUE be GRANTED, and this action should be DISMISSED with prejudice. Signed by MAG/JUDGE WALLACE W. DIXON on 7/26/11. (Wilson, JoAnne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHEILA R. CHAMBERS,
)
)
Plaintiff
)
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v.
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)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
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Defendant. )
MEMORANDUM OPINION
AND RECOMMENDATION
1:08CV806
Plaintiff, Sheila R. Chambers, brought this action pursuant to Section 205(g)
of the Social Security Act, as amended (42 U.S.C. § 405(g)), to obtain judicial review
of a final decision of the Commissioner of Social Security denying her claim for
Disability Insurance Benefits under Title II of the Social Security Act (the “Act”). The
parties have filed cross-motions for judgment, and the administrative record has
been certified to the court for review.
Procedural History
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on
January 9, 2006, alleging a disability onset date of November 19, 2005. Tr. 85.1 The
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Plaintiff filed for DIB on at least two prior occasions. She filed an application in July
2001, alleging disability as of January 23, 2001. The claim was denied at the
reconsideration level and was thereafter dismissed on March 7, 2003, for failure to timely
file a request for hearing. Tr. 29-31. Plaintiff filed a second claim for DIB in April 2003,
alleging disability as of March 13, 2003. Tr. 93. This claim was denied on November 18,
2005, by decision following a hearing. Tr. 35. Plaintiff alleges in her current claim that her
disability began the day following the 2005 decision. See Tr. 85.
application was denied initially and upon reconsideration. Tr. 49, 51. Plaintiff
requested a hearing de novo before an Administrative Law Judge (“ALJ”). Tr. 77.
Present at the hearing, held on May 21, 2008, were Plaintiff, her attorney and a
vocational expert (“VE”). Tr. 376.
By decision dated August 14, 2008, the ALJ determined that Plaintiff was not
disabled within the meaning of the Act. Tr. 11. On October 8, 2008, the Appeals
Council denied Plaintiff's request for review of the ALJ's decision, Tr. 6, thereby
making the ALJ's determination the Commissioner's final decision for purposes of
judicial review.
In deciding that Plaintiff is not entitled to benefits, the ALJ made the following
findings, which have been adopted by the Commissioner:
1. The claimant meets the insured status requirements of the Social
Security Act through September 30, 2006.
2. The claimant has not engaged in substantial gainful activity since
November 19, 2005, the alleged onset date (20 CFR 404.1520(b) and
404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative
disc disease of the lumbar spine; a facet syndrome; an affective
disorder; and a somatoform disorder (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. The claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) with a sit/stand option on an
occasional basis; no climbing of ladders; occasional climbing of stairs,
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balancing, stooping, crouching, kneeling or crawling; and no
concentrated exposure to hazards. The claimant is limited to semiskilled work performed at a non-production pace.
6. The claimant is unable to perform any past relevant work (20 CFR
404.1565).
7. The claimant was born on December 22, 1958, and was 46 years
old, which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1560(c), 404.1566, 404.960(c) and 416.966).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from November 19, 2005, through the date of the
decision (20 CFR 404.1520(g)).
Tr. 16-21.
Analysis
In her brief before the court, Plaintiff argues that the Commissioner’s findings
are in error because the ALJ failed to evaluate medical source opinions in
accordance with Social Security regulations. The Commissioner contends otherwise
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and urges that substantial evidence supports the determination that Plaintiff was not
disabled.
Scope of Review
The Act provides that, for “eligible”2 individuals, benefits shall be available to
those who are “under a disability,” defined in the Act as the inability:
to engage in any substantial gainful activity by reason of any 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).
To facilitate a uniform and efficient processing of disability claims, the Social
Security Administration (“SSA”), by regulation, has reduced the statutory definition
of “disability” to a series of five sequential questions (the “sequential evaluation
process”). An examiner must determine whether the claimant (1) is engaged in
substantial gainful activity, (2) has a severe impairment, (3) has an impairment which
equals an illness contained in the Act’s listing of impairments, (4) has an impairment
which prevents past relevant work, and (5) has an impairment which prevents him
from doing any other work. 20 C.F.R. § 404.1520.
The scope of judicial review by the federal courts in disability cases is narrowly
tailored to determine whether the findings of the Commissioner are supported by
substantial evidence and whether the correct law was applied. Richardson v.
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Eligibility requirements for DIB are found at 42 U.S.C. § 423(a)(1).
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Perales, 402 U.S. 389 (1971); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005). Consequently, the Act precludes a de novo review of the evidence and
requires the court to uphold the Commissioner's decision as long as it is supported
by substantial evidence. See Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)
(citing Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). Substantial evidence is:
evidence which a reasoning mind would accept as sufficient to support
a particular conclusion. It consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance. If there is
evidence to justify a refusal to direct a verdict were the case before a
jury, then there is “substantial evidence.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966)).
Thus, it is the duty of this court to give careful scrutiny to the whole record to
assure that there is a sound foundation for the Commissioner's findings, and that this
conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
If there is substantial evidence to support the decision of the Commissioner, that
decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Issue
Evaluation of Medical Source Opinions
State agency medical and psychological consultants “are highly qualified
physicians and psychologists who are experts in the evaluation of the medical issues
in disability claims under the Act.” Ruling 96-6p, 61 Fed. Reg. 34466-01 at 34467
(“Ruling 96-6p”). In disability cases, they consider the medical evidence and make
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findings of fact on the medical issues, including the claimant’s residual functional
capacity (“RFC”). Findings of fact by these consultants become “opinions” at the
ALJ and Appeals Council levels of administrative review, which must be considered
in making a decision. 20 C.F.R. § 404.1527(f)(2). Although not bound by these
opinions, the adjudicators may not ignore them and must explain the weight given
to the opinions in their decisions. 20 C.F.R. § 404.1527(f); Ruling 96-6p. The weight
to which the opinions of these non-treating sources will be entitled depends on
factors such as the consistency of the opinions with other evidence, the sources’
qualifications, and the degree to which the sources provide support for their
opinions. 20 C.F.R. § 404.1527(d)(3); Ruling 96-6p.
Plaintiff argues that the ALJ erred in evaluating several medical source
opinions in the record. Specifically, Plaintiff contends that the ALJ failed to address
or explain what weight was given, if any, to the opinions of non-examining
consultants Dr. Marianne Breslin and Dr. Brian Grover. Plaintiff further argues that
the ALJ’s finding that the opinion of examining consultant Dr. Kenneth J. Detrick is
entitled to little weight is not supported by substantial evidence. Finally, Plaintiff
contends that although the ALJ purported to give “great weight” to the opinion of
non-examining psychological consultant Ms. Bonny Gregory, her opinion in fact
conflicts with the ALJ’s RFC assessment.
Dr. Breslin completed a Mental Residual Functional Capacity Assessment
(“MRFC”) on January 11, 2002. Tr. 201-04. Based on the date it was completed,
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the MRFC clearly relates to Plaintiff’s 2001 DIB filing. See fn. 1, supra. The ALJ
is not required to discuss every finding in every medical report. Carlson v. Shalala,
999 F.2d 180, 181 (7th Cir. 1993) (“[T]he ALJ need not evaluate in writing every
piece of testimony and evidence submitted. What we require is that the ALJ
sufficiently articulate his assessment of the evidence to ‘assure us that the ALJ
considered the important evidence . . . [and to enable] us to trace the path of the
ALJ's reasoning.’") (citations omitted). Because Dr. Breslin’s opinion was rendered
nearly four years before Plaintiff’s current alleged onset date, the opinion has little,
if any, probative value; and the ALJ had no obligation to specifically discuss it.
Dr. Grover’s opinion similarly lacks meaningful relevance. Dr. Grover merely
affirmed a physical RFC assessment and the MRFC completed by Ms. Gregory. Tr.
249. Although relevant to the current inquiry, Dr. Grover’s affirmation of earlier
opinions is not evidence that is so important that it’s exclusion from discussion
prevents the court from tracing the path of the ALJ’s reasoning. Thus, the ALJ
committed no error in declining to discuss it. See Carlson, 999 F.2d at 181.
Following an examination on June 22, 2006, Dr. Detrick rendered an opinion
that Plaintiff is significantly impaired in her ability to relate to others and tolerate
stress in a work environment. Tr. 332. The ALJ, however, gave little weight to that
opinion as it was rendered two years before Plaintiff’s “successful” treatment with
Prozac, and because Dr. Detrick also opined that Plaintiff’s ability to understand,
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retain and follow simple instructions and perform simple or repetitive tasks was only
mildly impaired. Tr. 19 (citing Tr. 332).
Plaintiff argues that the medical evidence does not support the ALJ’s
reasoning concerning Dr. Detrick’s opinion. Docket No. 11 at 9. The court agrees
that the ALJ’s stated reasoning that the opinion should be discounted because it was
rendered two years before successful treatment is not persuasive; nevertheless, the
ALJ’s finding concerning Dr. Detrick’s opinion is otherwise supported by substantial
evidence; and, therefore, the court finds that there is no reversible error.
Plaintiff’s alleged onset date of disability is November 19, 2005. Tr. 85. Her
date last insured was September 30, 2006. Tr. 149. To qualify for benefits, Plaintiff
must prove that she became disabled during the period at issue, between
November 19, 2005, and September 30, 2006, (the “Insured Period”). See Johnson
v. Barnhart, 434 F.3d 650, 655-56 (4th Cir. 2005); 20 C.F.R. § 404.131. Dr. Detrick
examined Plaintiff on June 22, 2006, during the Insured Period. His findings are
germane to the issue of Plaintiff’s claimed disability at that time, regardless of
whether she later received successful treatment. Dr. Detrick’s opinion, however, is
consistent with the medical evidence in the record; and accordingly, the ALJ’s finding
is supported by substantial evidence.
The medical records regarding Plaintiff’s mental complaints during the Insured
Period are minimal. In May 2004, at a time in which she was previously adjudicated
“not disabled,” Plaintiff complained to her physician at a pain clinic of depression but
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declined a prescription for an anti-depressant, stating that she was doing well on
Xanax and preferred to seek treatment from her family physician. Tr. 311-12. There
is no evidence in the medical record that Plaintiff followed up with her family
physician at this time.
Moreover, the record indicates there was no further
discussion of anti-depressants with her physician at the pain clinic until
September 11, 2006, at which time Plaintiff’s chief complaint was poor sleep. Tr.
328. There is no mention at that time of anxiety, agoraphobia or panic attacks. Id.
Plaintiff was prescribed Cymbalta, an anti-depressant, but there is no indication that
the physician recommended or that Plaintiff sought any further treatment from
mental health practitioners. Id.
The record indicates that on October 10, 2006, Plaintiff finally sought
treatment from her family physician for psychological symptoms. She reported that
she could not tolerate the Cymbalta prescribed by the pain clinic for anxiety and
sleep issues, and that she had continuing anxiety issues. Tr. 355. Plaintiff’s
physician prescribed Pamelor for her depression symptoms. Id. In October 2006,
Plaintiff reported “good improvement” of her sleep symptoms with the Pamelor, and
her dosage was increased. Tr. 354. In November 2006, there is no indication of any
mental health or sleep complaints, and Plaintiff’s Pamelor dosage was again
increased. Tr. 353. After that visit, there is no record that Plaintiff sought or
received any further treatment for mental symptoms until February 2008, nearly 17
months after the end of the Insured Period, at which time she complained of “lately”
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increasing panic symptoms. Tr. 352. Thus, the evidence does not support Plaintiff’s
contention that she was suffered disabling mental symptoms prior to September 30,
2006, and substantial evidence supports the ALJ’s decision to accord minimal weight
to Dr. Detrick’s opinion.
Finally, Plaintiff argues that the ALJ’s mental RFC assessment conflicts with
the MRFC completed by non-examining psychological consultant Bonny Gregory.
Docket No. 11 at 11. Ms. Gregory completed the MRFC on July 10, 2006, and
based on her review of Plaintiff’s medical records, concluded that Plaintiff is not
significantly limited in her ability to remember locations and procedures or to
understand, remember and carry out short and simple instructions, and is only
moderately limited in her ability to understand, remember and carry out detailed
instructions. Tr. 229. Ms. Gregory also found that Plaintiff is not significantly limited
in her ability to perform activities within a schedule and maintain attendance, to
sustain an ordinary routine without special supervision, to work in coordination with
or proximity to others without being distracted, and to make simple work related
decisions. Id. She is only moderately limited in her ability to maintain attention and
concentration for extended periods and in her ability to complete a normal work day
and week without interruptions and to perform at a consistent pace. Tr. 231. Finally,
Ms. Gregory concluded that Plaintiff was not significantly limited in all aspects of
social interaction and adaptation, other than the abilities to interact with the general
public and to respond appropriately to changes in work setting, in which she was
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moderately limited. Id. Based on these findings, Ms. Gregory concluded that
Plaintiff could understand, carry out and remember two step commands with simple
instructions, maintain attention and concentration for two hours in an eight-hour work
day, make judgments on simple work-related decisions, and is capable of managing
in a low-stress setting with limited interpersonal demands, in a stable work
assignment involving simple tasks. Tr. 232.
The ALJ limited Plaintiff to semi-skilled work at a non-production pace. Tr. 17.
Plaintiff contends, however, that Ms. Gregory limited Plaintiff to “unskilled work ‘in
a low stress setting with limited interpersonal demands.’” Docket No. 11 at 11
(quoting Tr. 232). Accordingly, argues Plaintiff, the ALJ was obliged pursuant to 20
C.F.R. §§ 404.1527(d) and (f) and Rulings 96-6p and 96-8p, to explain why he did
not adopt Ms. Gregory’s RFC findings. Id. 11-12. The Commissioner contends that
Ms. Gregory did not in fact include any finding that Plaintiff is limited to unskilled
work, pointing to Ms. Gregory’s findings that Plaintiff had no significant limitation of
her ability to understand, remember and carry out short, simple instructions, and only
moderate limitation of her ability to understand, remember and carry out detailed
instructions. Docket No. 13 at 10 (citing Tr. 229).
The court need not decide the issue. Even assuming that the ALJ’s RFC
assessment was different from Ms. Gregory’s, there is no prejudice to Plaintiff by any
failure by the ALJ to explain the difference; and the court “will not remand ‘[a]bsent
unfairness or prejudice.’” See Samons v. Astrue, 497 F.3d 813, 822 (8th Cir. 2007).
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While agency decisions must be sustained, if at all, on their own
reasoning, this principle does not mechanically compel reversal when
a mistake of the administrative body is one that clearly had no bearing
on the procedure used or the substance of decision reached. Where
a subsidiary finding is unfounded, the court will remand the case to the
agency for further consideration only if the court is in substantial doubt
whether the administrative agency would have made the same ultimate
finding with the erroneous finding removed from the picture.
Kurzon v. United States Postal Service, 539 F.2d 788, 796 (1st Cir. 1976) (internal
citations omitted), quoted in Pechatsko v. Commissioner of Soc. Sec., 369 F. Supp.
2d 909, 912 (N.D. Ohio 2004).
This doctrine furthers the interest of judicial
economy: “The major policy underlying the harmless error rule is to preserve
judgments and avoid waste of time.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.
1988) (citing Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 520 (5th Cir.
1981)).
The VE testified that there are jobs that could be performed by a person of the
same age, educational background and work experience as Plaintiff, with the RFC
as expressed by the ALJ. One of those jobs included labeler marker, which the VE
testified is an unskilled job. Tr. 400. Accordingly, even if the ALJ had found that
Plaintiff was limited to unskilled work, she still would have been found to be not
disabled, and thus any error regarding Ms. Gregory’s opinion would be harmless.
See Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (refusing to remand
where there was no “reason to believe that the remand might lead to a different
result”).
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Conclusion and Recommendation
For the foregoing reasons, the decision of the Commissioner is supported by
substantial evidence, and the correct legal principles were applied. Therefore, IT IS
RECOMMENDED that the Commissioner’s decision finding no disability be
AFFIRMED. To this extent, Plaintiff’s motion for summary judgment (docket no. 10)
seeking a reversal of the Commissioner’s decision should be DENIED, Defendant’s
motion for judgment on the pleadings (docket no. 12) should be GRANTED, and this
action should be DISMISSED with prejudice.
WALLACE W. DIXON
United States Magistrate Judge
July 26, 2011
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