GUSTAFSON v. ASTRUE
Filing
19
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 2/25/2014; that the Commissioner's decision finding no disability is AFFIRMED, Gustafson's motion for judgment on the pleadings (Doc. 12 ) is DENIED, the Commissioner's motion for judgment on the pleadings (Doc. 15 ) is GRANTED, and this action is DISMISSED WITH PREJUDICE. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GRIER E. GUSTAFSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security, 1
Defendant.
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1:10CV833
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff Grier E. Gustafson brought this action pursuant to
Sections 205(g) and 1631(c)(3)of the Social Security Act, as amended
(42 U.S.C. §§ 405(g) and 1383(c)(3)) (the “Act”), to obtain judicial
review of a final decision of the Commissioner of Social Security
denying her claims for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) 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
for
review.
For
the
reasons
set
forth
below,
the
Commissioner’s motion will be granted, Gustafson’s motion will be
denied, and this case will be dismissed.
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Colvin
should be substituted for Michael J. Astrue as the Defendant in this suit. No
further action need be taken to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Gustafson applied for DIB and SSI on July 21, 2005, 2 alleging
a disability onset date of June 30, 2001.
(Tr. at 47-51.) 3
The
applications were denied initially (Tr. at 33, 41-45) and on
reconsideration (Tr. at 31, 36-38), and Gustafson requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. at 34).
Present at the hearing, held on January 21, 2009, were Gustafson,
her attorney, and a vocational expert (“VE”).
(Tr. at 669-91.)
On
May 5, 2009, the ALJ determined that Gustafson was not disabled within
the meaning of the Act.
(Tr. at 12-24.)
On September 21, 2010, the
Appeals Council denied Gustafson’s request for review, thereby
making the ALJ’s determination the Commissioner’s final decision for
purposes of judicial review.
(Tr. at 7-10.)
In making this disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Gustafson] meets the insured status requirements of
the . . . Act through December 31, 2002.
2.
[Gustafson] has not engaged in substantial gainful
activity since June 30, 2001, the alleged onset date (20
CFR 404.1571 et seq., and 416.971 et seq.).
2
Gustafson filed her first application for DIB and SSI on July 29, 2002. (Tr.
at 52-54.) After that application was denied initially on October 2, 2002, she
did not pursue it further. (Tr. at 15, 33, 41-45.)
3
Transcript citations refer to the Administrative Transcript of Record filed
manually with the Commissioner’s Answer (Doc. 12).
2
3.
[Gustafson] has the following severe impairments:
Bipolar Disorder; Anxiety; Depression; Post-Traumatic
Stress Disorder; History of Polysubstance Abuse in
Remission; Disorder of the Lumbar Spine, Status Post
Surgery; and History of Seizures (due to drug abuse) (20
CFR 404.1520(c) and 416.920(c)).
. . .
4.
[Gustafson] 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 404.1525, 404.1526, 416.925 and
416.926).
. . .
5.
After careful consideration of the entire record, the
undersigned finds that, at all times relevant to this
decision, . . . [Gustafson] ha[d] the residual functional
capacity to perform a nearly full range of light work as
defined in 20 CFR 404.1567(b) and 416.967(b). [She] can
stand and walk for 6 hours in an 8 hour day; she can sit
for 6 hours in an 8 hour day; she can lift and carry, and
push and pull 20 pounds occasionally and 10 pounds
frequently; she has the following occasional postural
limitations: stooping, bending, kneeling, couching and
crawling; and she must avoid all exposure to hazards in
the
workplace
(dangerous
machinery,
working
at
unprotected heights). Furthermore, after December 31,
2002, [Gustafson] ha[d] the mental residual functional
capacity for unskilled, non-complex, routine, repetitive
mental
tasks,
in
a
low-stress,
non-production
environment. Prior to December 31, 2002, [Gustafson]’s
mental impairments were non-severe.
(Tr. at 17-19.)
In light of the findings regarding residual functional capacity
(“RFC”) and the testimony of the VE, the ALJ determined that Gustafson
would be able to perform her past relevant work (“PRW”) as a
3
dispatcher
and
as
a
switchboard
operator.
(Tr. at
23.)
Alternatively, the ALJ found that even if Gustafson were not able
to perform any of her PRW, other jobs available in significant numbers
existed in the national economy that she could perform.
Accordingly,
the
ALJ
determined
that
Gustafson
had
(Id.)
not
been
“disabled,” as defined in the Act, at any time from June 30, 2001,
through the date of her decision, May 5, 2009.
II.
(Id.)
ANALYSIS
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).
courts are not to try the case de novo.”
F.2d 396, 397 (4th Cir. 1974).
“The
Oppenheim v. Finch, 495
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.”
Hancock
v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (quoting Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)) (internal brackets
omitted) (setting out the standards for judicial review).
4
“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. 1992) (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)
(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966))
(internal brackets omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
is substantial evidence.”
Hunter, 993 F.2d at 34 (quoting Laws, 368
F.2d at 642) (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 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996))
(internal brackets 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.”
Hancock, 667 F.3d at 472 (quoting
Johnson, 434 F.3d at 653) (internal brackets omitted).
“The issue
before [the reviewing court], therefore, is not whether [the
5
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, 76 F.3d at 589.
In undertaking this limited review, the court notes that in
administrative proceedings, “[a] claimant for disability benefits
bears the burden of proving a disability.”
260, 264 (4th Cir. 1981).
Hall v. Harris, 658 F.2d
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 months.’”
Id. (quoting 42 U.S.C. § 423(d)(1)(A)). 4
“The
Commissioner
disability claims.”
§§ 404.1520(a)(4);
uses
a
five-step
process
to
evaluate
Hancock, 667 F.3d at 472 (citing 20 C.F.R.
416.920(a)(4)).
“Under
this
process,
the
Commissioner asks, in sequence, whether the claimant: (1) worked
during the alleged period of disability; (2) had a severe impairment;
4
“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).
6
(3) had an impairment that met or equaled the requirements of a listed
impairment; (4) could return to her past relevant work; and (5) if
not, could perform any other work in the national economy.”
Id.
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 engaged in ‘substantial gainful activity.’
claimant
is
working,
benefits
are
denied.
determines if the claimant is ‘severely’ disabled.
are denied.”
The
If the
second
step
If not, benefits
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.
270 F.3d at 177.
Mastro,
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. 5
Step four then requires the ALJ to assess
5
“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”
(emphasis 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
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, which
“requires the [Government] to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s]
impairments.”
Hines,
453
F.3d
at
563.
In
making
this
determination, 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
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 in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.
In the present case, the ALJ found that Gustafson had not engaged
in substantial gainful activity since her alleged onset date.
at 18.)
(Tr.
Gustafson therefore met her burden at step one of the
sequential evaluation process.
At step two, the ALJ further
determined that Gustafson suffered from severe bipolar disorder,
anxiety, depression, post-traumatic stress disorder, a history of
polysubstance abuse in remission, disorders of the lumbar spine
8
status post surgery, and a history of seizures due to drug abuse. 6
(Id.)
The ALJ found at step three that none of Gustafson’s
impairments met or equaled the severity of any of the disability
listings.
(Id.)
Therefore, the ALJ assessed Gustafson’s RFC and
determined that she could perform light work with occasional
stooping, bending, kneeling, crouching and crawling and no exposure
to dangerous machinery or unprotected heights.
(Tr. at 19.)
Based
on Gustafson’s mental impairments becoming severe after December 31,
2002,
the
ALJ
added
non-exertional
limitations
of
unskilled,
non-complex, routine, repetitive mental tasks, in a low-stress,
non-production
environment.
(Id.)
As
a
result
of
this
determination, the ALJ found at step four of the analysis that
Gustafson could return to her PRW as a dispatcher and switchboard
operator.
(Tr. at 23.)
Alternatively, the ALJ found at step five
that she retained the RFC to perform the jobs of basket filler, silver
wrapper and paper inspector, which were available in significant
numbers in the national economy.
(Id.)
Accordingly, the ALJ
concluded that Gustafson had not been under a disability at any time
from her alleged onset date through the date of the ALJ’s decision.
(Tr. at 23-24.)
6
The ALJ later clarified at step four that Gustafson’s mental impairments (i.e.,
bipolar disorder, anxiety, depression and post-traumatic stress disorder) were
severe only after her date last insured of December 31, 2002. (Tr. at 19.)
9
Gustafson argues that the ALJ erred at steps two and four of
the sequential evaluation.
(Doc. 14 at 3-9.)
Specifically, she
contends that the ALJ erred at step two by failing to find that her
mental impairments were severe prior to her date last insured.
at 3-6.)
(Id.
Gustafson further alleges that the ALJ erred at step four
by finding that she was capable of performing her past relevant work
as a dispatcher and switchboard operator.
(Id. at 6-9.)
The
Commissioner contends otherwise and urges that substantial evidence
supports the ALJ’s determination that Gustafson was not disabled.
(Doc. 16 at 4-7.)
A.
Mental Impairments
Gustafson
first
contends
that
“[t]he
ALJ’s
finding
that
[Gustafson]’s mental impairments were not severe prior to her date
last insured is not supported by substantial evidence.”
at 3.)
(Doc. 14
Gustafson summarizes her mental health treatment from
September 1999 (preceding her onset date) to August 2004 (post-dating
her date last insured for DIB purposes), and argues that this evidence
“establishes that [her] mental impairments had been present for many
years prior to her alleged onset day and that they continued
essentially unabated at least through her date last insured.”
at 6.)
(Id.
Citing 20 C.F.R. § 404.1520(c), Gustafson asserts that her
mental impairments met the severity test prior to her date last
10
insured because they “significantly interfered with her ability to
maintain regular sustained employment,” and that she was unable to
perform jobs as required “as a result of her struggle with her mental
problems.”
(Id.)
The court finds these arguments unpersuasive for
two primary reasons.
First, the ALJ’s conclusion that Gustafson’s mental impairments
were not severe prior to her date last insured is supported by
substantial evidence.
An impairment is properly categorized as
severe if it “significantly limits” a claimant’s ability to perform
physical
or
mental
basic
§§ 404.1520(c), 416.920(c).
work
activities.
See
20
C.F.R.
The ALJ discussed the matter as
follows:
With regards to the claimant’s mental impairments, the
medical evidence of record reveals that the claimant has
a long standing history of mental health treatment for
multiple
impairments,
including
bipolar
disorder,
anxiety, depression, post traumatic stress disorder, and
a past history of polysubstance abuse (now in remission).
The records show that the claimant was treated in local
emergency rooms in 2001 and by a psychiatrist, S. Prasem
[sic] 7 Reddy, MD, with medication management. Due to an
increase in her ongoing symptoms, the claimant sought
treatment at the Guilford Center in July of 2002.
. . .
Prior to December 31, 2002, the claimant’s mental
impairments were non-severe, because the records show only
7
The ALJ mistakenly referred to the psychiatrist who treated Gustafson in 2001
as “S. Prasem Reddy, MD.” (Tr. at 20.) In fact, Keshavpal Reddy, MD, treated
Gustafson in 2001 (see Tr. at 242-48), and a different psychiatrist, Sundar Reddy
S. Pasem, MD, treated Gustafson later in 2005 (see Tr. 379-91.)
11
a few emergency room visits for mental health treatment,
and only 3 months of psychiatric treatment by Dr. Reddy.
During this time period the claimant did not seek or
receive regular mental health treatment.
Moreover,
during the emergency room visits in 2001 and earlier,
alcohol and cocaine were found in the claimant’s system.
. . .
The state agency psychiatric consultant, Alejandro
Vergara, MD, completed a psychiatric review form and a
mental residual functional capacity assessment for the
claimant dated January 25, 2006. . . . Dr. Vergara . . .
determined . . . that there was insufficient psychiatric
evidence prior to the claimant’s date last insured of
December 31, 2002, to establish any severe mental
impairment. The undersigned agrees with Dr. Vergara’s
assessment, because it is supported by the clinical
psychiatric evidence of record.
(Tr. at 20-22) (internal citations to the administrative transcript
omitted).
The ALJ’s description of Gustafson’s mental health
treatment from 1999 to 2002 is correct, (see Tr. at 198-233, 238-48,
294-306), as was his summary of Dr. Vergara’s findings (see Tr. at
548-61).
Notably, other state agency consultants in addition to Dr.
Vergara found insufficient evidence of a mental disorder prior to
Gustafson’s date last insured due to her failure to attend a mental
consultative examination or otherwise cooperate with the agency and
respond to inquiries.
(See Tr. at 521-39, 566-79, 584-98.)
This
evidence certainly qualifies as substantial in nature to support the
ALJ’s
conclusion
that
Gustafson’s
12
mental
impairments
did
not
significantly limit her ability to perform basic work activities
prior to date last insured.
Second, and equally as significant, even if the ALJ erred by
finding Gustafson’s mental impairments non-severe prior to her date
last insured, any such error is harmless.
See Fisher v. Bowen, 869
F.2d 1055, 1057 (7th Cir. 1989) (“No principle of administrative law
or common sense requires us to remand a case in quest of a perfect
opinion unless there is reason to believe that the remand might lead
to a different result.”); Morgan v. Barnhart, 142 F. App’x 716, 722-23
(4th Cir. 2005); Bishop v. Barnhart, 78 F. App’x 265, 268 (4th Cir.
2003).
Even considering Gustafson’s mental impairments as severe
after her date last insured and including additional non-exertional
limitations in her RFC, the ALJ still found that she retained the
ability to perform her PRW, a finding which, as discussed more fully
below, is also supported by substantial evidence.
B. Past Relevant Work
Gustafson next argues that “[t]he ALJ’s finding that [she] can
perform her past relevant work as a dispatcher and switchboard
operator is not supported by substantial evidence.”
(Doc. 14 at 6.)
She again catalogues her mental health treatment from August 2003
through December 2008 (id. at 6-9), and conclusorily states that
“[t]he above cited evidence establishes that [her] mental problems
13
and the symptoms she experiences preclude her from performing work
activity on a regular sustained basis” (id. at 9).
Gustafson
maintains that “the variability of [her] symptoms” prohibited her
from “maintain[ing] a regular work schedule,” “be[ing] present on
a day to day basis,” or “maintain[ing] attention and concentration
well enough to complete job tasks in a timely manner.”
(Id.)
The
court disagrees.
When assessing Gustafson’s RFC, the ALJ concluded that after
her date last insured, Gustafson could perform light work involving
occasional postural activities, no exposure to job hazards, and
“unskilled, non-complex, routine, repetitive mental tasks in a low
stress, non-production environment.”
(Tr. at 19.)
The ALJ then
relied upon a VE who testified that Gustafson’s PRW as a dispatcher
corresponded to the position “Dispatcher” in the Dictionary of
Occupational Titles (“DOT”), 222.587-038, and that Gustafson’s PRW
as a switchboard operator corresponded to DOT job title “Switchboard
Operator,” DOT 235.662-022, 8 both of which are performed at the
sedentary level of exertion and are semi-skilled to unskilled in
nature, with a Specific Vocational Preparation (“SVP”) of 3.
at 23, 684.)
(Tr.
The VE specifically addressed the issue of the
8
The ALJ mistakenly stated that the DOT citation for Switchboard Operator is
235.662-0223 (Tr. at 23), but the hearing transcript and the DOT clarify that it
is 235.662-022 (Tr. at 684).
14
potential conflict between Gustafson’s unskilled mental RFC and the
possibility of these jobs requiring semi-skilled abilities:
ALJ: And the dispatcher job has an SVP:3. How is it that
. . . someone limited to non-complex[,] routine,
repetitive tasks could do that job?
VE: It’s on the lower . . . end of semi[-]skilled. And
generally depending on the organization that she’s working
for, the individual would actually not have any
semi[-]skilled duties. It would be more of unskilled,
simple[,] routine, repetitive type of – so there I would
beg to differ with the Dictionary of Occupational Titles.
The same would hold true for the dispatcher [sic] job.
ALJ:
So the actual job you believe is more simple,
routine, repetitive –
VE:
Yes, Your Honor.
ALJ: – and differs from the DOT?
VE:
ALJ:
Yes, Your Honor.
Based on your observation and experience?
VE: Observation, experience and placing people in those
types of jobs.
(Tr. at 685-86.)
Gustafson’s attorney then cross-examined the VE
regarding the basis of her observation and experience regarding
dispatching and switchboard operator jobs.
(Tr. at 686-87.)
The
VE concluded that these jobs existed in significant numbers in the
local and national economy (Tr. at 685), and the ALJ, relying upon
this testimony, concluded that Gustafson retained the RFC to perform
these jobs as they are generally performed in the local and national
15
economy.
(Tr. at 23.)
In an abundance of caution, the ALJ proceeded
to step five and elicited other jobs available in significant numbers
in the national economy that Gustafson could perform given her RFC.
(Tr. at 23, 687-88.)
In the face of this expert testimony (and alternative step five
finding), Gustafson does not point the court to any particular
requirements of her PRW that she claims she could not perform during
the relevant period, other than a vague reference to an inability
to be “present” or “maintain attention and concentration.”
14
at
9.)
However,
the
state
agency
consultants
(Doc.
evaluating
Gustafson’s mental impairments both before and after her date last
insured all believed that she was capable of maintaining a workweek
and attention and concentration adequately for unskilled, simple,
routine and repetitive mental tasks.
doctor of record has opined otherwise.
(Tr. at 521-39, 548-98.)
No
Under these circumstances,
the ALJ’s conclusion that Gustafson can perform her PRW is supported
by substantial evidence.
III. CONCLUSION
For the reasons set forth above,
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is AFFIRMED, Gustafson’s motion for judgment
on the pleadings (Doc. 12) is DENIED, the Commissioner’s motion for
16
judgment on the pleadings (Doc. 15) is GRANTED, and this action is
DISMISSED WITH PREJUDICE.
/s/
Thomas D. Schroeder
United States District Judge
February 25, 2014
17
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