WRIGHT v. ASTRUE
Filing
20
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 1/23/2012, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's motion for judgment on the pleadi ngs (Docket Entry 13 ) seeking a reversal of the Commissioner's decision be DENIED, that Defendant's motion for judgment on the pleadings (Docket Entry 15 ) be GRANTED, and that this action be dismissed with prejudice. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DENNIS WRIGHT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
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)
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)
)
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)
1:09CV0003
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Dennis Wright, brought this action pursuant to
Sections 205(g) and 1631(c)(3) of the Social Security Act (the
“Act”), as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain
judicial review of a final decision of the Commissioner of Social
Security denying his claims for Disability Insurance Benefits and
Supplemental Security Income under, respectively, Titles II and XVI
of the Act.
The parties have filed cross-motions for judgment and
the administrative record has been certified to the Court.
PROCEDURAL HISTORY
Plaintiff filed applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) on August 21,
2003, alleging a disability onset date of July 19, 1999. (Tr. 11113, 497-500.)1
2003.
1
Plaintiff later amended his onset date to August 1,
(Tr. 14.)
After his application was denied both initially
Transcript citations refer to the administrative record.
and upon reconsideration (Tr. 36-39, 41-43), Plaintiff requested a
hearing
de
(Tr. 44).
novo
before
an
Administrative
Law
Judge
(“ALJ”)
Present at the hearing, held on May 11, 2006, were
Plaintiff, his attorney, and a vocational expert (“VE”). (Tr. 14.)
The ALJ ultimately determined that Plaintiff was not disabled
within the meaning of the Act (Tr. 14-23) and, on November 6, 2008,
the Appeals Council denied Plaintiff’s request for review of the
decision, thereby making the ALJ’s determination the Commissioner’s
final decision for purposes of judicial review.
(Tr. 6-8.)
In rendering his disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
The
claimant
last
met
the
insured
status
requirements of the Social Security Act on June 30, 2000.
2.
The claimant has not engaged in substantial gainful
activity since August 1, 2003, the amended onset date (20
CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971
et seq.).
3.
The claimant has the following severe impairments:
post traumatic stress disorder, polysubstance dependence,
bilateral knee pain and back pain (20 CFR 404.1520(c) and
416.920(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,
404.1526, 416.920(d), 416.925 and 416.926).
. . . .
5.
After careful consideration of the entire record,
the undersigned finds that the claimant has the residual
-2-
functional capacity to
additional restrictions.
engage
in
light
work
with
(Tr. 16-17.)
The ALJ described those additional restrictions as follows:
[Plaintiff] is capable of engaging in light work activity
with a sit/stand option, lifting and carrying up to 30
pounds occasionally and 25 pounds frequently, sitting up
to six hours in an eight hour work day and standing and
walking up to six hours in an eight hour work day,
pushing and pulling, and engaging in postural activities.
(Tr. 18.)
Due to Plaintiff’s post traumatic stress disorder, the
ALJ also restricted Plaintiff to “simple, routine repetitive tasks
in a low stress environment, with minimal interaction demands.”
(Tr. 19.)
In light of the above findings regarding residual functional
capacity (“RFC”), the ALJ determined that Plaintiff was unable to
perform his past relevant work.
(Tr. 21.)
The ALJ also found that
transferability of job skills was not an issue in the case, but
added that Plaintiff has at least a high school education and can
communicate in English.
(Id.)
Finally, because Plaintiff was 48
years old at the time of the ALJ’s decision, the ALJ noted that
Plaintiff was regulatorily defined as “a younger individual age 4549.”
(See id. (citing 20 C.F.R. §§ 404.1563 and 416.963).)
Based
on these factors, Plaintiff’s RFC, and the VE’s testimony, the ALJ
concluded that “there are jobs that exist in significant numbers in
the national economy that the claimant can perform.”
20 C.F.R. §§ 404.1560(c) and 404.1566).)
-3-
(Id. (citing
Accordingly, the ALJ
decided that Plaintiff was not under a “disability,” as defined in
the Act, from his alleged onset date through the date of the
decision.
(Tr. 22.)
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of review of [such an administrative] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
“The courts are not to try the case de novo.”
495 F.2d 396, 397 (4th Cir. 1974).
Oppenheim v. Finch,
Instead, “a reviewing court
must uphold the factual findings of the ALJ [underlying the denial
of benefits] if they are supported by substantial evidence and were
reached through application of the correct legal standard.” Hines,
453 F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal citations and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
-4-
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“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 [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
In confronting the issue so framed, the Court must take note
that “[a] claimant for disability benefits bears the burden of
proving a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981),
and
that,
in
this
context,
“disability”
means
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
-5-
months,’” id. (quoting 42 U.S.C. § 423(d)(1)(A)).2
“To regularize
the adjudicative process, the Social Security Administration has
. . . detailed regulations incorporating long-standing medicalvocational evaluation policies that take into account a claimant’s
age, education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This process has up to five steps: “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 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 [the claimant’s] past
work or (5) any other work.”
Albright v. Commissioner of the
Social Security Admin., 174 F.3d 473, 475 n.2 (1999).3
A finding
adverse to the claimant at any of several points in this five-step
sequence forecloses a disability designation and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
2
“The Social Security Act comprises two disability benefits programs. The
Social Security Disability Insurance Program . . . provides benefits to disabled
persons who have contributed to the program while employed. The Supplemental
Security Income Program . . . provides benefits to indigent disabled persons.
The statutory definitions and the regulations . . . for determining disability
governing these two programs are, in all aspects relevant here, substantively
identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
-6-
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
4
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
-7-
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
Assignments of Error
In the present case, the ALJ found that Plaintiff, who was not
working, met his burden at step one of the sequential evaluation
process (“SEP”).
At step two, the ALJ further determined that
Plaintiff suffered from the following severe impairments:
post
traumatic stress disorder, polysubstance dependence, bilateral knee
pain, and back pain.
The ALJ concluded at the third and fourth
steps that these impairments did not meet a disability listing, but
that they did foreclose Plaintiff’s return to his prior work.
At
step five, the ALJ found, based on Plaintiff’s RFC and the VE’s
testimony, that Plaintiff could perform other jobs available in the
community and thus was not disabled.
Plaintiff argues that substantial evidence fails to support
the ALJ’s RFC formulation.
Specifically, Plaintiff contends that
5
A claimant thus can qualify as disabled via two paths through the five-step
sequential evaluation process.
The first path requires resolution of the
questions at steps one, two, and three in the claimant’s favor, whereas, on the
second path, the claimant must prevail at steps one, two, four, and five. Some
short-hand judicial characterizations of the sequential nature of the five-step
disability evaluation appear to gloss over the fact that an adverse finding
against a claimant on step three does not terminate the analysis. See, e.g.,
Hunter, 993 F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any
step of the process, review does not proceed to the next step.”).
-8-
the ALJ failed to give proper weight and consideration to (1)
Plaintiff’s 2004 Magnetic Resonance Imaging (“MRI”) scan, (2) the
social limitations propounded by Dr. John Lindgren, and (3) the
psychological evaluation of Louise Glogau, M.A.
(Docket Entry 14
at 6-11.) Finally, Plaintiff claims that the ALJ failed to include
all of Plaintiff’s “significant[,] non-exertional impairments” in
both the RFC assessment and the hypothetical question posed to the
VE.
(Id. at 11-17.)
Defendant contends otherwise and urges that
substantial evidence supports the determination that Plaintiff was
not disabled.
1.
(Docket Entry 16 at 19.)
Plaintiff’s 2004 MRI
Plaintiff first claims that the ALJ failed to properly assess
a 2004 MRI of his knee when formulating his RFC.
He argues that
[t]he ALJ denied [Plaintiff’s disability] claim partly
because, in his opinion, Wright’s x-ray of May 2005
undermined or contradicted Wright’s earlier favorable
MRI, which showed “probably medial meniscus undersurface
tear at the junction of the body/posterior horn,” with
“extensive degenerative changes within the groove of the
trochlia.” The ALJ’s conclusion that the x-ray reliably
undermined or contradicted the MRI was not supported by
medical opinion, however.
Further, the ALJ did not
explain why he found the x-ray to be more credible than
the MRI. Accordingly, the Decision should be reversed.
(Docket Entry 14 at 6.)
Defendant
counters
that
“Plaintiff’s
premise
is
flawed,
artificially pitting the August 2004 MRI against the May 2005 x-ray
in an either/or death match.”
(Docket Entry 16 at 3.)
According
to Defendant, “[n]o physician has branded them incompatible, and
-9-
they are not necessarily contradictory.” (Id.) Instead, Defendant
contends, the ALJ’s RFC formulation resulted from a review of the
evidence as a whole, including both the MRI and the x-ray as well
as physician’s reports, other treatment records, and Plaintiff’s
own testimony.
(Id.)
More importantly, “[t]he MRI does not
establish that whatever functional limitations Plaintiff suffers
are
incompatible
impairment.”
The
with
his
(Id. at 3-4.)
ALJ’s
decision
RFC,
which
contemplated
severe
Defendant’s position has merit.
discusses
the
medical
evidence
of
Plaintiff’s knee condition at length, including the results of his
MRI.
(Tr. 17-18.)
At no point in this discussion did the ALJ
discredit the MRI findings.
(See id.)
Plaintiff argues, however,
that the ALJ impliedly did so in finding that, based on Plaintiff’s
x-rays
and
arthritis.”
treatment
notes,
he
suffered
from
“only
(Docket Entry 14 at 14 (citing Tr. 18).)
minimal
Because the
ALJ also concluded that, “[w]ithout significant findings on x-ray
and numerous treatment notes, a more restrictive [RFC] cannot be
assigned to the claimant” (Tr. 18-19), Plaintiff claims that “the
connection between ‘only minimal arthritis’ and non-disability was
immediate.”
(Docket Entry 14 at 14.)
This argument greatly oversimplifies the ALJ’s decision-making
process.
Even Plaintiff’s own record citations show that the ALJ
relied on more than x-rays in making his disability determination.
Significantly, the treatment notes cited as a major basis for the
-10-
ALJ’s decision demonstrate that (1) Plaintiff’s knee pain was wellmanaged by ibuprofen, a comparatively mild pain reliever (see Tr.
18,
20),
(2)
Plaintiff’s
routine
daily
activities
were
not
substantially restricted by his knee condition (Tr. 20), and (3)
despite the “extensive degenerative changes” shown in the MRI, the
condition of Plaintiff’s knees, in a functional sense, remained
stable over time (Tr. 17-18).
In short, substantial evidence
supports the ALJ’s physical RFC formulation.
2.
Social Limitations
Plaintiff next argues that “[t]he ALJ erred in failing to
discuss the opinion of Dr. Lindgren, who assessed [Plaintiff] as
being ‘severely compromised in his ability to sustain social
relationships’ and ‘severely compromised in his ability to sustain
work relationships.’” (Docket Entry 14 at 8.) This claim fails on
two fronts.
First, contrary to Plaintiff’s assertions, the ALJ’s alleged
failure to discuss the mental limitations set forth by Dr. Lindgren
does not necessitate a finding of error.
Simply stated, there is
no requirement that an ALJ discuss each piece of evidence in his
decision.
See, e.g., Black v. Apfel, 143 F.3d 383, 386 (8th Cir.
1998); Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995).
Moreover, a closer reading of the ALJ’s decision reveals that
he
did,
in
fact,
consider
the
limitations
set
forth
by
Dr.
Lindgren. The ALJ explicitly cited Dr. Lindgren’s report, although
-11-
by exhibit number rather than by name, and adopted a list of
Plaintiff’s post-traumatic stress disorder (“PTSD”) symptoms almost
verbatim from it.
(Tr. 19.)
More importantly, the ALJ accepted
Dr. Lindgren’s finding regarding Plaintiff’s social limitations by
noting
that
Plaintiff
suffers
from
“marked
difficulties
in
maintaining social functioning” (Tr. 17)6 which restrict him to jobs
“with minimal interaction demands” (Tr. 19).
Despite these findings, Plaintiff argues that the ALJ erred by
failing
to
specifically
“address
Dr.
Lindgren’s
[Plaintiff] is so limited that he is disabled.”
at 6.)
opinion
that
(Docket Entry 19
In fact, the ALJ was in no way obligated to accept Dr.
Lindgren’s opinion on the ultimate issue of disability.
The issue
of whether a claimant meets the statutory definition of disability
is reserved for the Commissioner and, as Defendant correctly notes,
“[a]n opinion rendered by a medical source on this issue is not
entitled to ‘any special significance.’”
(Docket Entry 16 at 5
(quoting 20 C.F.R. §§ 404.1527(e)(3), 416.927(e)(3)).)
However,
Plaintiff contends that, although the ALJ did not have to accept
Dr. Lindgren’s opinion on the ultimate legal issue, the ALJ
6
A marked limitation is defined as “a serious limitation with substantial loss
in the ability to effectively function, resulting in unsatisfactory work
performance.” Johnson v. Astrue, No. 2:10CV00022, 2011 WL 902437, at *4 n.8
(W.D. Va. Mar. 15, 2011) (unpublished).
It represents the most limited
classification on a mental RFC assessment (see, e.g., Tr. 227), and therefore
most closely approximates the “severe” limitations assessed by Dr. Lindgren.
-12-
nonetheless had to “evaluate [Dr. Lindgren’s] legal conclusions in
light of the evidentiary record.”
(Docket Entry 19 at 7.)
Plaintiff’s argument in this regard does not warrant reversal.
As the ALJ’s decision notes, more than severe social limitations
are required to meet or equal the listing for PTSD.
Anxiety
disorders, such as PTSD, are only considered disabling under 20
C.F.R. Part 404, Subpart P, Appendix 1 § 12.06 (“Listing 12.06”) if
a plaintiff meets two sets of criteria.
First, he must manifest
certain “A” criteria, which consist of specific symptoms set out in
the statute.
Second, the symptoms set out in part “A” of the
listing must result in at least two of the following “B” criteria:
1.
2.
3.
4.
Marked restriction of activities of daily living;
or
Marked
difficulties
in
maintaining
social
functioning; or
Marked difficulties in maintaining concentration,
persistence, or pace; or
Repeated episodes of decompensation, each of
extended duration.
20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.06(B).
In the present case, the ALJ acknowledged that Plaintiff
demonstrates the relevant symptoms of PTSD, which consist of
“[r]ecurrent and intrusive recollections of a traumatic experience,
which are a source of marked distress.”
(Tr. 17); see also 20
C.F.R. Part 404, Subpart P, Appendix 1 § 12.06(A)(5). The ALJ then
found, in line with Dr. Lindgren’s evaluation, that Plaintiff
suffered marked difficulties in maintaining social functioning.
(Tr. 17.)
However, because Plaintiff suffered less than marked
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restrictions in the other three relevant areas, the ALJ ultimately
determined that Plaintiff failed to meet the “B” criteria for
Listing 12.06.
(Id.)
Plaintiff points to no medical evidence from Dr. Lindgren or
other physicians countering this conclusion and the record reveals
none.
In fact, the State Agency expert, Dr. Brian Grover, found
that Plaintiff was no more than moderately limited in any area,
including social functioning.
properly
incorporated
Dr.
(Tr. 227-30.)
Lindgren’s
opinion
Because the ALJ
into
the
RFC
formulation, the ALJ was not obligated to adopt Dr. Lindgren’s
conclusions as to the ultimate question of disability, and the
record does not establish that Plaintiff’s PTSD constituted a
disabling impairment, Plaintiff’s instant arguments provide no
basis for this Court to reverse the ALJ’s finding at step three of
the SEP or the ALJ’s formulation of the RFC.
3.
Louise Glogau’s Opinion
Plaintiff next contends that “[t]he ALJ erred in disregarding
the opinion of a licensed psychological associate who assessed
[Plaintiff] as . . . being disabled.”
(Docket Entry 14 at 10.)
Defendant counters that the psychological associate in question,
Louise Glogau, “was not an acceptable medical source,” as defined
by the Act.
(Docket Entry 16 at 7.)
Defendant further argues that
the ALJ also properly reduced the weight afforded to Ms. Glogau’s
-14-
opinions because they “were conclusory and did not set forth
‘clinical symptoms.’”
Under
20
(Id.)
C.F.R.
§§
404.1513(a)(2)
and
416.913(a)(2),
acceptable medical sources, defined as “[s]ources who can provide
evidence to establish an impairment,” are limited to “[l]icensed or
certified psychologists” along with licensed physicians and certain
narrowly-defined
evidence
from
specialists.
“other
Although
sources”
as
well
ALJs
in
often
making
consider
disability
determinations, such sources merit a lower degree of deference.
Specifically, as Defendant explains:
[a]n ALJ “may . . . use evidence from other sources to
show the severity of [a claimant’s] impairment and how it
affects [the claimant’s] ability to work.” [20 C.F.R.]
404.1513(d), 416.913(d) (emphasis added). In contrast to
the mandate that the Commissioner “will” consider the
assessments of acceptable medical sources, the language
involving “other sources” is permissive.
Compare id.
§§ 404.1513(d), 416.913(c) with id. §§ 404.1513(d),
416.913(d).
(Docket Entry 16 at 7-8.)
In the present case, the ALJ admittedly gave less weight to
Ms.
Glogau’s
psychologist
symptoms.”
opinion
and
it
(Tr. 19.)
because
“it
contain[ed]
was
not
conclusions
conducted
and
not
by
a
clinical
The remaining questions are (1) whether the
ALJ misclassified Ms. Glogau as an “other source,” and (2) even if
the ALJ erred in this classification, whether the diminished weight
given to Ms. Glogau’s opinion constitutes reversible error.
-15-
Significantly, the issue of whether a licensed psychological
associate qualifies as an “acceptable medical source” remains far
less settled than either party allows.
The sole case to directly
address the issue sides with Plaintiff. See Helvey v. Astrue, No.
07-26-GWU,
2008
(unpublished).
WL
162138,
at
*5
(E.D.
Ky.
Jan.
16,
2008)
However, this Court could just as easily conclude,
given their comparable training and education levels, that licensed
psychological associates are more akin to “other sources” such as
“nurse-practitioners,
physicians’
assistants,
naturopaths,
chiropractors, audiologists, and therapists” than to physicians and
psychologists.
20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1).
Fortunately, the Court need not resolve this issue to decide
the matter at hand. First, although Ms. Glogau’s “assessment [was]
not given great weight”
gave it no weight.
(Tr. 19), nothing indicates that the ALJ
The ALJ transparently considered Ms. Glogau’s
opinion on Plaintiff’s mental impairment, at least to some extent,
when formulating his decision.
Moreover, the record fails to
indicate that the ALJ erred in reducing the weight given to Ms.
Glogau’s assessment.
The Fourth Circuit has held that, “if a
physician’s opinion is not supported by the clinical evidence or if
it is inconsistent with other substantial evidence, it should be
-16-
accorded significantly less weight.” Craig, 76 F.3d at 590 (citing
20 C.F.R. § 416.927).7
In the present case, even a cursory reading of Ms. Glogau’s
report reveals that the listed “symptoms” are, in fact, Plaintiff’s
self-reported symptoms rather than clinically-identified symptoms.
(See Tr. 418-19.)
The assessment includes no test results or any
other objective, clinical evidence of Plaintiff’s abilities. (Id.)
Because
the
report
“contain[ed]
conclusions
and
not
clinical
symptoms,” the ALJ properly accorded it little weight in his RFC
formulation.
(Tr. 19.)
In addition, as was the case with Dr.
Lindgren’s assessment, the ALJ was in no way obligated to accept
Ms. Glogau’s opinion on the ultimate issue of disability.
20
C.F.R. §§ 404.1527(e)(1), 416.927(e)(1). Once again, Plaintiff has
failed to show that the mental RFC determined by the ALJ fails for
lack of substantial evidence or other reversible legal error.
4.
Non-exertional impairments
Finally, Plaintiff asserts four separate arguments regarding
his RFC and a related hypothetical question.
In each of these
arguments, he contends that the ALJ failed to include various nonexertional impairments.
ALJ
improperly
omitted
Specifically, Plaintiff claims that the
from
the
RFC
(1)
the
frequency
of
Plaintiff’s need to alternate between sitting and standing, (2) a
7
Notably, Craig supports this proposition even in the case of treating
physician’s testimony, which generally receives controlling weight under 20
C.F.R. §§ 404.1527(d) and 416.927(d).
-17-
precise description of Plaintiff’s significant mental impairments,
and (3) the full extent and duration of Plaintiff’s pain.
(Docket
Entry 14 at 11-16.) He also argues that substantial evidence fails
to support the lifting capacity found in his RFC.
(Id. at 16-17.)
Plaintiff first asserts that, under SSR 96-9p, “[t]he RFC
assessment must be specific as to the frequency of the individual’s
need to alternate sitting and standing.”
(Docket Entry 14 at 11.)
Because the RFC in the present case failed to do so, Plaintiff
contends that both the RFC and the hypothetical question based upon
it are “fatally deficient.” (Id. at 12.) As Defendant points out,
however, SSR 96-9p “provides guidance for situations in which an
individual’s RFC permits ‘less than a full range of sedentary
work.’”
(Id. at 10 (citing SSR 96-9p, 1996 WL 374185, at *1 (July
2, 1996)).)
Where, as here, an individual can perform light,
rather than sedentary, work, SSR 96-9p is inapposite.
See, e.g.,
Hodge v. Barnhart, 76 Fed. Appx. 797, 800 (9th Cir. 2003) (“Ruling
96-9p does not apply to light work.”); Vallejo v. Astrue, No.
3:10cv445, 2011 WL 4595259, at *8-10 (W.D.N.C. Aug. 4, 2011)
(unpublished) (adopting position that SSR 96-9p does not apply
where ALJ found claimant capable of light – rather than just
sedentary – work and citing similar holdings in Smith v. Astrue,
No. 5:09CV1581 RS/EMT, 2010 WL 3749209, at *19 & n.26 (N.D. Fla.
Aug. 25, 2010) (unpublished), recommendation adopted, 2010 WL
3749193 (N.D. Fla. Sept. 17, 2010) (unpublished), and Taylor v.
-18-
Astrue, No. 3:08-cv-346-J-TEM, 2009 WL 3232135, at *8 (M.D. Fla.
Sept. 29, 2009) (unpublished)).
Further, the record reflects that the RFC adopted by the ALJ
and related to the VE included a sit/stand option. (Tr. 18 (“[T]he
claimant is capable of engaging in light work with a sit/stand
option.”), 561 (documenting that RFC in hypothetical posed to VE
included limitation of “a sit/stand option”).)
“[T]he Eleventh
Circuit [has] found that, in the case of a Plaintiff with an RFC
for light work with a sit/stand limitation, ‘although the ALJ
failed to specify the frequency that the claimant needed to change
his sit/stand option, the reasonable implication of the ALJ’s
description was that the sit/stand option was at the claimant’s own
volition.’”
Vallejo, 2011 WL 4595259, at *10 (quoting Williams v.
Barnhart, 140 Fed. Appx. 932, 937 (11th Cir. 2005)) (internal
brackets omitted); accord Thompson v. Astrue, Civil Action No.
8:09-01968-JFA-BHH, 2010 WL 3878729, at *7 (D.S.C. June 16, 2010)
(unpublished), recommendation adopted, 2010 WL 3880047 (D.S.C.
Sept. 28, 2010) (unpublished), aff’d on other grounds, 442 Fed.
Appx. 804 (4th Cir. 2011).
“Therefore, contrary to Plaintiff’s
claim, it was not necessary for the ALJ to incorporate additional
‘details’ about Plaintiff’s need for a sit/stand option.”
Taylor,
2009 WL 3232135, at *8 (internal citations omitted).
Plaintiff next contends that the RFC formulated by the ALJ,
and the hypothetical question based upon it, failed to adequately
-19-
reflect
Plaintiff’s
concentration,
moderate
persistence,
difficulties
and
pace,
as
in
well
as
maintaining
his
marked
difficulties in maintaining social and working relationships.
(Docket Entry 14 at 13.)
The RFC, as propounded to the VE, limited
Plaintiff to “simple, routine repetitive tasks in a low stress
environment, with minimal interaction demands.”
(Tr. 22, 561.)
That
non-exertional
limitation
adequately
accounted
for
the
deficiencies cited by Plaintiff.
The Fourth Circuit has held that “[i]n order for a vocational
expert’s opinion to be relevant or helpful . . . it 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). Significantly, “[t]here is no obligation . . . to
transfer
[detailed
psychiatric]
hypothetical questions.”
findings
verbatim
to
the
Yoho v. Commissioner of Soc. Sec., No.
98-1684, 168 F.3d 484, 1998 WL 911719, at *3 (4th Cir. Dec. 31,
1998)
(unpublished).
So
long
as
a
hypothetical
adequately
encompasses the effects of a claimant’s mental limitations, it
suffices.
See id.; Chavis v. Shalala, No. 93-1915, 28 F.3d 1208,
1994 WL 319163, at *2-3 (4th Cir. July 5, 1994) (unpublished); see
also Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.
2008) (ruling that ALJ properly characterized claimant’s ability as
encompassing “simple tasks” notwithstanding failure to recite
verbatim expert’s description of claimant’s “restrictions related
-20-
to concentration, persistence, or pace”); Cox v. Astrue, 495 F.3d
614,
620
(8th
Cir.
2007)
(holding
questions
need
only
capture
“the
that
proper
concrete
hypothetical
consequences
of
a
claimant’s deficiencies”).
In the present case, the evidence, including Plaintiff’s life
activities and multiple psychological reports, supports Plaintiff’s
contention
that
he
suffers
maintaining
concentration,
from
moderate
persistence,
and
difficulties
pace,
and
in
marked
difficulties in maintaining social and working relationships.
The
RFC, however, represents more than just a list of limitations.
Instead, an RFC must set forth “the most [a claimant] can still do
despite [his] limitations.” 20 C.F.R. §§ 404.1545, 416.945. Here,
the RFC adequately reflects Plaintiff’s limited functional and
vocational abilities.
Specifically, the limitation to simple,
routine, repetitive tasks addresses his difficulties in maintaining
concentration, persistence, and pace, and the restriction to “a low
stress environment, with minimal interaction demands” encompasses
the “concrete consequences” of his struggles to maintain social and
working relationships. (See Tr. 19, 229.) Therefore, the RFC (and
hypothetical questions based thereon) sufficiently account, in
functional terms, for Plaintiff’s mental limitations as supported
by the substantial evidence in this case.
Next, Plaintiff alleges that both the RFC and hypothetical
questions failed to “fully describe and accurately set forth the
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extent and duration of [his] pain.”
(Docket Entry 14 at 14.)
However, as Defendant correctly responds,
Plaintiff’s
argument
fundamentally
and
fatally
misunderstands the relationship between symptoms, such as
pain, and RFC.
Pain is a symptom of an impairment, not a functional
limitation.
See
20
C.F.R.
§§
404.1529(c)(4),
404.1545(a)(1), 404.1569a, 416.929(c) (4), 416.945(a)(1),
416.969a; accord Hines, 453 F.3d at 562-63. Any symptom
may result in functional limitations that circumscribe an
individual’s ability to perform work. See Craig, 76 F.3d
at 585; 20 C.F.R. §§ 404.1529(c)(4), 404.1545(a)(1),
404.1569.1569a, 416.929(c)(4), 416.945(a)(1), 416.969a.
Thus, symptoms are relevant only to the extent that they
impose limitations that preclude work. See Johnson, 434
F.3d at 658; 20 C.F.R. §§ 404.1529(c)(4), 404.1545(a)(1),
404.1569a, 416.929(c)(4), 416.945(a)(1), 416.969a.
(Docket Entry 16 at 14.)
The question thus becomes whether the ALJ fully considered and
adequately incorporated all of the evidence relating to Plaintiff’s
complaints of pain when he formulated the RFC.
The relevant
statutory section, 20 C.F.R. § 404.1529(c)(3), categorizes such
evidence as follows:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of
your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of
any medication you take or have taken to alleviate your
pain or other symptoms;
(v) Treatment, other than medication, you receive or have
received for relief of your pain or other symptoms;
-22-
(vi) Any measures you use or have used to relieve your
pain or other symptoms (e.g., lying flat on your back,
standing for 15 to 20 minutes every hour, sleeping on a
board, etc.); and
(vii)
Other
factors
concerning
your
functional
limitations and restrictions due to pain or other
symptoms.
In
this
case,
Plaintiff’s
reported
daily
activities
and
medications, along with his treatment records, shaped his RFC, as
discussed
at
Specifically,
length
the
ALJ
in
the
noted
ALJ’s
that
decision.
(1)
Plaintiff
(Tr.
20.)
“does
some
housework, drives, attends church and goes to the movies” despite
his pain, and that (2) none of Plaintiff’s treating physicians have
restricted his ability to engage in “at least light work as a
result of any musculoskeletal impairment.”
(Id.)
Moreover, as
mentioned in relation to Plaintiff’s MRI contention, Plaintiff
only takes ibuprofen for pain relief.
If he were
experiencing severe pain or if ibuprofen did not relieve
his symptoms, it is reasonable to assume he would report
this information to a physician and he would be
prescribed appropriate pain medication.
The evidence
shows [that Plaintiff] has reported that ibuprofen works
well in controlling his pain.
(Id.; see also, e.g., Tr. 382).
Conversely, the ALJ found, based on the medical evidence, that
Plaintiff’s knee pain did require significant limitations in the
amount of time he could sit, walk, and stand and the weight of
materials he could lift. (Tr. 18.) Plaintiff’s RFC, along with the
hypothetical questions based upon it, reflects all of his above
-23-
abilities as well as his limitations resulting from pain. (Tr. 18,
22.)
Thus, substantial evidence supports the ALJ’s determination.
In his final sub-argument, Plaintiff contends that substantial
evidence fails to support the lifting capacity found in his RFC and
the related hypothetical questions.
Specifically, the ALJ posited
that Plaintiff was capable of “lifting and carrying up to 30 pounds
occasionally and 25 pounds frequently.”
(Tr. 18.)
Although the
decision attributes these numbers to Plaintiff’s “treatment notes”
(id.), no one physician’s lifting recommendations exactly mirror
the 30 and 25 pound recommendations.
Rather, the three relevant
medical assessments are as follows:
First, Dr. Hugh Wallace opined that Plaintiff could carry 15
pounds frequently and 30 pounds occasionally based on a one-time
physical examination and a review of Plaintiff’s records.
210-13.)
(Tr.
In another consultative examination, Dr. Maqsood Ahmed
concluded that Plaintiff could lift and carry up to ten pounds
frequently and 25 pounds occasionally.
(Tr. 489.)
However, Dr.
Andrea Davis, the state agency physician who conducted an RFC
assessment of Plaintiff, explained that “[o]bjective evidence [from
Dr.
Wallace’s
outlined.”
examination
(Tr. 225.)8
did]
not
support
the
limitations
Specifically, Dr. Davis noted that,
according to Dr. Wallace’s own treatment notes, Plaintiff
8
Because Dr. Davis’ RFC assessment took place before Dr. Ahmed’s examination,
Dr. Davis could not evaluate Dr. Ahmed’s conclusions. However, given that Dr.
Ahmed’s proposed lifting capacities are even more restrictive than those proposed
by Dr. Wallace, Dr. Davis’ opinion would apply to them as well.
-24-
wore braces on both knees and got around well, got on and
off [the] table without any difficulty, [h]ad 90 degrees
flexion and full extension of [his] knees bilaterally,
[and] mild decrease, 80 degrees, in forward flexion of
[his] dorsolumbar spine. Lumbar spine x-ray identifies
no significant abnormality; however, possibility of mild
thoracic scoliosis is not excluded.
(Tr. 225.)
Based on this information, along with all the medical
information of record, Dr. Davis opined that Plaintiff could lift
25 pounds frequently and 50 pounds occasionally.
(Tr. 220.)
The RFC formulated from the three assessments above reflects
the ALJ’s thorough consideration of all the relevant evidence.
Rather than arbitrarily adopting one opinion over the others, the
ALJ incorporated the three into a single formulation based on the
record as a whole.
In particular, he set Plaintiff’s maximum
occasional lifting capacity at 30 pounds, substantially in line
with the limitations of 25 and 30 pounds by Drs. Wallace and Ahmed,
and below the limit set by Dr. Davis.
Although the frequent
lifting capacity of 25 pounds determined by the ALJ represents the
highest of the three values proposed by the medical experts,
nothing supports Plaintiff’s assertion that, in adopting it, the
ALJ “[drew] medical conclusions on his own.”
17.)
(Docket Entry 14 at
The ALJ adopted the number directly from Dr. Davis’ reasoned
RFC assessment.
Under these circumstances, the ALJ’s decision is
supported by substantial evidence.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s motion for
-25-
judgment on the pleadings (Docket Entry 13) seeking a reversal of
the Commissioner’s decision be DENIED, that Defendant’s motion for
judgment on the pleadings (Docket Entry 15) be GRANTED, and that
this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 23, 2012
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