OLMOS v. ASTRUE
Filing
18
MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR on 12/29/2014, for the reasons set forth above, Plaintiff's Motion for Judgment on the Pleadings is GRANTED, Defendant's Motion for Judgment on the Pleadings is DENIED, and the case is remanded to the ALJ as instructed above. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHELLE D. OLMOS,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Commissioner of Social Security,
Defendant.
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1:12CV24
MEMORANDUM OPINION AND ORDER
Plaintiff Michelle D. Olmos brought this action pursuant to
42 U.S.C. § 405(g), Section 205(g) of the Social Security Act, to obtain
judicial review of a final decision of the Commissioner of Social Security
denying her claim for a period of disability and disability insurance under
Title II and Title XVI of the Social Security Act. Doc. #2. The administrative
record was certified to the Court for review.2 The parties filed crossmotions for judgment on the pleadings. Docs. #10, 12. On November 18,
1
Acting Commissioner of Social Security Carolyn W. Colvin is
substituted for Michael Astrue, the named Defendant at the time the instant
action was filed. See Fed. R. Civ. P. 52(d).
2
All references to the administrative record, filed manually with the
Commissioner’s Answer, are noted as “A.R.”
2014, a hearing was held on the parties’ motions.3 For the reasons
explained below, Plaintiff’s Motion for Judgment on the Pleadings is
GRANTED, and Defendant’s Motion for Judgment on the Pleadings is
DENIED.
I.
Plaintiff applied for disability insurance benefits and for supplemental
security income on October 22, 2007, with an alleged disability onset date
of March 31, 2006. (A.R. 62-63, 97, 101.) By letter dated October 14,
2009, Plaintiff amended her alleged onset date of disability from March 31,
2006, to October 24, 2007, and noted her willingness to amend further the
alleged onset date to May 30, 2008. (Id. at 16, 557.) Plaintiff’s claims
were denied initially and on reconsideration, after which Plaintiff requested
an administrative hearing. (Id. at 62-83.) On September 30, 2009, Plaintiff
and her attorney4 appeared before an Administrative Law Judge (“ALJ”). (Id.
at 30-61.) In his decision dated January 8, 2010, the ALJ found that
Plaintiff was not disabled within the meaning of the Social Security Act.
3
All references to attorney assertions and argument during the hearing
before this Court are referred to as “Tr.”
4
Plaintiff was represented by different counsel before the
Administrative Law Judge and this Court.
2
(E.g., id. at 16.) The ALJ’s decision became the Commissioner’s final
decision for purposes of judicial review when the Appeals Council denied
Plaintiff’s request for review. (Id. at 1-6.) In the instant action, Plaintiff
alleges that (1) the ALJ improperly evaluated her credibility and the medical
record which resulted in a Residual Functional Capacity (“RFC”) finding
which is not supported by substantial evidence, (2) the ALJ improperly
assessed an opinion in violation of 20 C.F.R. § 404.1527, and (3) the ALJ
erred in determining that Plaintiff was capable of performing past relevant
work.5 Doc. #11 at 1.
II.
Federal law authorizes judicial review, albeit “extremely limited” in
scope, of the Social Security Commissioner’s denial of social security
benefits. See 42 U.S.C. § 405(g); Hines v. Barnhart, 453 F.3d 559, 561
5
At the hearing before this Court, Plaintiff’s counsel alleged that the
“most significant error . . . has to do with the ALJ’s finding regarding
plaintiff’s past relevant work.” Tr. 4:7-9. Plaintiff’s counsel then argued
that the second error involves the ALJ’s failure to include in the RFC
Plaintiff’s social limitations that the ALJ found as part of his psychiatric
review technique. Id. at 8:5-16. Plaintiff’s counsel alleged that the ALJ’s
third error was his weighing of the opinion of Plaintiff’s therapist, Ms.
Gerard-Collins. Id. at 14:6-7. Some of Plaintiff’s counsel’s arguments at the
hearing differ from those presented in Plaintiff’s Memorandum in Support of
Motion for Judgment on the Pleadings (“Memorandum”). While the Court
will consider the arguments made at the hearing, Plaintiff’s arguments will
be addressed as they are presented in her Memorandum.
3
(4th Cir. 2006); Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). “[A]
reviewing court must uphold the factual findings of the ALJ if they are
supported by substantial evidence and were reached through application of
the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012) (internal quotation and brackets omitted). “The issue before [the
Court], therefore, is not whether [Plaintiff] is disabled, but whether the
ALJ’s finding that she 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, 586 (4th Cir. 1996). “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)).
III.
Plaintiff first alleges that the ALJ improperly evaluated her credibility
and the medical record, resulting in an RFC finding6 that is not supported by
substantial evidence. However, substantial evidence supports the ALJ’s
credibility determination, evaluation of the medical record, and RFC finding.
6
There appears to be no dispute as to Plaintiff’s physical capabilities
and the related RFC findings.
4
A.
The ALJ found that Plaintiff was sincere and fairly credible at the
hearing and that her medically determinable impairments could reasonably
be expected to cause the alleged symptoms. (A.R. 23.) However, he found
that Plaintiff’s statements about the intensity, persistence, and limiting
effects of those symptoms were somewhat inconsistent with the RFC
assessment. (Id.) “Because [the ALJ] had the opportunity to observe the
demeanor and to determine the credibility of the claimant, the ALJ’s
observations concerning these questions are to be given great weight.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). To enable
meaningful review, the ALJ’s findings with regard to a claimant’s credibility
must “contain specific reasons . . . supported by evidence in the case
record.” SSR 96-7p, 1996 WL 374186, at *2. Here, the ALJ provided
specific reasons, all of which substantial evidence supports, for his
credibility determination.
The ALJ noted that, at the hearing, Plaintiff testified “that she was
disabled due to major depression, anxiety, PTSD, and panic disorder with
agoraphobia.” (A.R. 22.)
She “reported that she had full-blown attacks
when she ventured in public by herself, or even when she was with
5
someone and was unfamiliar with the surroundings.” (Id.) She “reported
that she was nervous around other people; she had stress at home with her
children; and that she had 4 panic attacks weekly7.” (Id.) She testified “that
she became depressed when she had flashbacks from the abuse in her
childhood; if someone talked about issues that reminded her of the past; or
when people talked specifically about the claimant’s past problems.” (Id.)
She described “depressive symptoms of crying spells, severe depression for
2-3 days at a time; and social isolation. The claimant stated that she had 2
episodes of severe depression in the past month . . . [and] reported mood
swings, confusion, and disorientation due to anxiety and depression.” (Id.)
In addition, Plaintiff testified that she has “issues with being social”
“[i]f it’s a place that [she is] not familiar with and if [she] is [alone].” (Id. at
45.) She becomes “really nervous, jittery, and it’s hard to breath, [she]
get[s] light-headed and basically [feels] like [she] just want[s] to pass out.”
(Id.) When her attorney asked, “Does that only happen when you’re out in
public or in an unfamiliar type of place,” Plaintiff responded, “If it’s a
unfamiliar type of place.” (Id.) Plaintiff testified that she has “trouble
getting anxious” while at school “[u]sually” around strangers and she is
7
Plaintiff actually testified that she could have panic attacks as often
as four times a week. (A.R. 48.)
6
“afraid to go up to them and talk to them.” (Id. at 46.) She testified that
her anxiety has become worse since working on her GED because there are
students who are grasping material more quickly than she, which
embarrasses her and she feels like she does not fit in. (Id. at 58.) She said
that there are times that she becomes nervous at school, “get[s] stuck,” and
tries her “best to figure it out on her own[,]” but is able to ask for help if she
“push[es] [her]self to get to that point to ask for help because . . . [she]
get[s] embarrassed . . . .” (Id. at 39.) When asked if she has problems with
focus and concentration, Plaintiff testified that if she is stressed and goes
into a panic attack or if she goes into a deep depression, “it just totally
throws [her] off the base of things . . . daily tasks . . . . It just throws [her]
off the track. [She is] not able to focus. [She has] a tendency to forget.” (Id.
at 56.) When asked if it made it difficult for her when she is trying to do
her work, she testified she “just basically [has] to get up from what [she is]
doing at school . . . [and] go outside or . . . to the bathroom” to remove
herself from the situation. (Id.) She becomes overwhelmed “[e]specially if it
[is] something new” because “it just throws [her] off the track.” (Id. at 57.)
She also testified that the “only [time] when [her depression] is triggered” is
when someone mentions her past, causing flashbacks of childhood issues.
7
(Id. at 53.) A depressive episode involving a deep crying spell lasting up to
three hours at a time “tends to slow [her] down in everything . . . . [She
has] to push [herself] to do daily normal things.” (Id. at 54.)
On the other hand, Plaintiff also testified about the progress that she
has made. The ALJ noted that she testified that, at the time of the hearing,
she had been attending courses at Surry Community College four hours a
day, five times a week for three months to earn her GED. (Id. at 36-37.)
She had plans to take the GED test by November 2009. (Id. at 40.) She
testified that she attends parent-teacher conferences. (Id. at 41.) On a daily
basis, she had been taking her son to daycare and picking up her son and
daughter from daycare. (Id. at 38.) She stated that she has “[s]ome” panic
attacks when she is out in public, “but they’re not as bad as they have
been.” (Id. at 48.) She explained that she learned from her therapist
techniques to work through episodes when she feels “panicky.” (Id. at 4647.) To stop panic attacks, she employs “thought-stopping” and has
“learned to tell [herself] that this situation that is bothering [her] at the
moment is not worth [her] going into full blown panic attack.” (Id. at 4849.) Plaintiff testified that her therapist has taught her not to concern
herself with what others around her think of her and that she is making
8
progress with her therapy. (Id. at 46-47.) In addition to her therapist’s
assistance, Plaintiff began receiving help from Stop Child Abuse Now
(“SCAN”) in early 2008. (Id. at 50.) Plaintiff testified that she has had less
“trouble [with] her anxiety” since receiving help through SCAN. (Id.) She
went as far as to state that SCAN’s assistance “really has helped very
much” by implementing a daily routine and allowing Plaintiff to “reduce
stress a lot.” (Id.)
B.
The medical evidence supports Plaintiff’s testimony that she has a
history of anxiety, panic attacks, and depression. However, the medical
records, as well as Plaintiff’s counseling records, reveal a more marked
improvement as a result of Plaintiff’s active participation in her psychiatric,
medical, and therapeutic care than some of Plaintiff’s testimony suggests.
The ALJ noted that the medical evidence of record reveals “a history of
treatment for mental impairments since October of 2007" during which
Plaintiff sought treatment from her primary care physicians before beginning
“psychiatric medication management and counseling therapy in May of
2008 . . . .” (Id. at 20.) The ALJ explained that, generally, Plaintiff’s
symptoms of depression, anxiety-related PTSD, and panic disorder include
9
“a depressed and anxious mood; panic attacks; flashbacks of childhood
abuse; weight gain; feelings of guilt or worthlessness; difficulties
concentrating; and occasional suicidal ideation.” (Id.) The ALJ included
relevant information concerning Plaintiff’s mental health from her primary
care providers, psychiatrist Dr. Mark Chinn, therapist Helen Girard-Collins,
and parent aide during the period between April 2006 and October 2009,
the month after the hearing before the ALJ. (Id. at 20-22.)
The ALJ noted that records from Plaintiff’s primary care providers
from April 2006 to February 2008 reflect “intermittent episodes of chest
pain related to anxiety; persistent complaints of stress; a flat affect; and
mild anxiety. However, in December 2007, the claimant was reported as
calmer and less anxious;8 and in March 2008 her physician stated that the
claimant was still ‘mildly anxious but better.’” (Id. at 21 citing Exs. 12F-15F,
17F-19F.)
Records from Dr. Chinn and Ms. Girard-Collins indicate Plaintiff “has
experienced fairly consistent improvement in her mental symptoms since
beginning formal mental health treatment in May of 2008.” (Id.) The ALJ
8
Also in December, Plaintiff’s primary care physician noted that
Plaintiff was there for a “followup of her nerves” and was “doing much
better” since she had been on medication for two weeks. (Id. at 259.)
10
explained that, although Dr. Chinn’s notes describe Plaintiff as having a
“mildly dysphonic mood and affect initially[,] . . . [l]ater records show an
improvement in the claimant’s mental status and functioning; in her ability
to provide better care for her children; and to perform her activities of daily
living.9 The records also show that due to mental stabilization the claimant
was able to attend GED classes.10” (Id. citing Exs. 14F-17F.) Dr. Chinn
noted in records from March through September 2009 “a good response to
medication, and an improving mood and ability to manage anxiety.”11 (Id.)
9
For example, in May 2008, Dr. Chinn noted that Plaintiff “endorses
having anxiety attacks, where she will get short of breath, feel dizzy,
sweaty with chest pain, feel like she is falling. . . . [These symptoms] come
on when she becomes very anxious trying to get things done in which she
becomes upset or if she has to maintain herself in a crowd. The episodes
are fairly infrequent now since she has been in treatment with [medication].”
(Id. at 551.) In August 2008, Plaintiff reported to Dr. Chinn that she had
“more panic attacks with storms or traffic or being around crowds.” Dr.
Chinn noted that Plaintiff’s major depressive disorder had “improved with
higher dose” of medication. (Id. at 523.) Dr. Chinn noted in September
2008 that Plaintiff’s depression had worsened, but medication was helping.
(Id. at 500.) In December 2008, Dr. Chinn noted that Plaintiff’s depressive
symptoms had improved with a combination of medication and therapy. (Id.
at 477.)
10
In July 2009, Plaintiff reported to Dr. Chinn that she was positive
about starting her GED and that her mood and anxiety had improved since
being back on her medications on a regular basis. (Id. at 428.)
11
Specifically, in March 2009, Dr. Chinn noted that Plaintiff had a
partial response to current medications for mood and anxiety symptoms and
had significant additional improvement since beginning therapy. (Id. at 432.)
11
The ALJ explained that Dr. Chinn’s mental status examination on September
24, 2009, “revealed a euthymic affect; good cooperation; no suicidal or
homicidal ideation; and normal thought process. The claimant reported that
she had experienced only 1 panic attack in the past 3 months. Dr. Chinn
reported that . . . the claimant’s mood symptoms and functioning continued
to improve.” (Id. citing Exs. 15F, 17F.)
The ALJ acknowledged that notes from Ms. Girard-Collins “also show
a progressively improving mood and functioning from November of 2008
through September of 2009.” (Id.) Although Plaintiff “exhibited a depressed
mood, anxiety, and problems with concentration” in February 2009,12 “the
records also show active participation in therapy; and by July of 2009,
In May 2009, Plaintiff reported to Dr. Chinn that she believed her
medications were helping. (Id. at 429.) In September 2009, Plaintiff told Dr.
Chinn that her mood had been improving, as well as her anxiety. In the past
three months, she had only one slight panic attack. She was proud of
almost completing her GED, and she believed that her medications had been
helping. (Id. at 427.)
12
Plaintiff’s therapy records from January and February 2009 also
reflect that Plaintiff “said therapy helps her by teaching her different ways
of responding to stressful situations” and that “she uses ‘Thought stopping’
and distraction to cope with thoughts” about her childhood. (Id. at 415,
416.) Plaintiff “reported feeling much better about herself and has been
engaging in play out-of-doors with her children. [She] said she is planning to
attend church with her children . . . .” (Id. at 414.) Ms. Girard-Collins also
noted that Plaintiff “said she is feeling better with Therapy and is finding it
easier to talk with people out in public.” (Id. at 413.)
12
sustained efforts in self-improvement and control.13” (Id.) The ALJ
explained that records from July 2009 “show that the claimant was enrolled
in classes; she was hopeful; and . . . ‘seems able to manage stress of
classes, children, and extended family at this time.’”14 (Id.) The ALJ found
that “[a]s of September 8, 2009, the claimant reported better sleep; good
interaction with her children; progress in school; and improved interpersonal
relationships.”15 (Id.) Ms. Girard-Collins “reported that the claimant
‘appeared stable at this time.’” (Id. citing Exs. 14F-17F.) Plaintiff’s parent
aide, the director of a community service center, noted on October 6, 2009,
13
In June 2009, Ms. Girard-Collins noted that Plaintiff was able to
respond to her mother in a positive way for the first time, and Plaintiff was
noted to have “Improved.” (Id. at 412.)
14
Also in July 2009, Plaintiff “seemed hopeful as she cooperates with
Work First to learn skills to be independent and to find a job. [She] appeared
to be excited about getting day care for the children and being able to
attend the Community College.” (A.R. 411.) Plaintiff was noted as showing
“Improvement,” as opposed to “Regressed” or “No change.” (Id. at 410,
411.) In therapy notes from August 2009, she also described attending
school as a positive activity that made her feel good about herself. (Id. at
409.) While her treatment notes for August 25, 2009, indicate she had
“Regressed” because she had been off her medication for a month due to
finances, her September 8, 2009, records indicate “Improvement.” (Id. at
408, 409.) Her mood and anxiety continued to be manageable, and she
reported that her mood and anxiety had improved since being back on her
medications on a regular basis. (Id. at 428.)
15
Plaintiff also stated that she enjoyed being out with her children. (Id.
at 408.)
13
that Plaintiff “successfully completed several goals; obtained her own
housing; received custody of her daughter; and had enrolled in a GED
program.” (Id. at 22 citing Ex. 18F.)16
“After careful consideration of the evidence,” the ALJ determined that
Plaintiff’s mental impairments cause “mild to moderate work-related
functional limitations. However, the records also show that the claimant’s
overall mental status and functioning has improved significantly since she
began mental health treatment.” (Id. at 23.) The ALJ noted that Plaintiff
“has shown good overall compliance with her mental health treatment; her
16
In addition to records from Plaintiff’s primary care, psychiatric, and
therapeutic treatment, records from New River Service Authority’s Adult
Community Support program reflect improvement in Plaintiff’s mental
health. In October and November 2008, with her new medication, Plaintiff
reported feeling less stressed and a decrease in symptoms of depression and
anxiety. (Id. at 490, 493, 497.) In December 2008, Plaintiff reported being
able to get out more. She went to DSS, community college, grocery
shopping, and her grandmother’s residence one day. The following day, she
went with her son to his preschool evaluation. Although she reported her
anxiety level as a 3 (out of 5, with 5 being a panic attack), she also reported
using some of the techniques she had learned for relaxation, and she knew
it was helping. (Id. at 479.) In January and February 2009, Plaintiff
reported that she was better able to handle her current stressors. (Id. at
467, 468.) By August 2009, she reported that she was “really doing well,”
she enjoyed attending school to obtain her GED, her mood was “up
beat”[sic], and “getting out of the house is very motivating.” (Id. at 442.) In
September 2009, Plaintiff reported that her depression and anxiety levels
were a 7 (out of 10, with 10 being the highest), but that she was “feeling
well” and was “surprised at how her mood has been more upbeat since
attending school with a structured daily schedule.” (Id. at 439.)
14
medications appear to be working reasonably well; she is actively
participating in programs of self-improvement; and she has acknowledged
reduced stress in her personal and home life.” (Id.) Because substantial
evidence supports the ALJ’s credibility determination, evaluation of the
medical record, and RFC finding, there is no error with respect to this
alleged issue.
Before analyzing the next alleged issue, it is important to address
Plaintiff’s repeated contention that the ALJ “hold[s] . . . against her” the
positive steps she has taken and goals she has achieved when he finds her
not disabled despite medical evidence and Plaintiff’s testimony that she still
struggles with anxiety and panic attacks. Doc. #11 at 6, 7. Plaintiff’s
presentation of the evidence in her Memorandum suggests that she is more
disabled than a close reading of the medical records and Plaintiff’s testimony
before the ALJ actually supports, as explained above.17 A careful review of
17
For example, in her Memorandum, Plaintiff’s counsel states, “Ms.
Olmos testified that her doctors felt she needed in-home therapy because of
her disability about being in public.” Doc. #11 at 5. Plaintiff’s counsel
further states, “Ms. Olmos’ requirement for in-home therapy is indicative of
the seriousness of her anxiety from being in public and around others.” Id.
However, both Plaintiff’s testimony and the records reflect that her health
care providers initially recommended group therapy, in which Plaintiff
participated, but that Plaintiff thereafter requested in-home therapy. (A.R.
49, 505.) Plaintiff’s physicians did not “fe[el] that she needed in-home
therapy because of her disability about being in public,” and Plaintiff did not
15
Plaintiff’s testimony and the medical records reflects that Plaintiff
experiences anxiety and panic attacks, but as a result of her active
participation in and commitment to therapy and life-skills services and
consistent medication management, Plaintiff has learned to use and regularly
employs techniques to lessen stress and avoid anxiety and panic attacks.
The ALJ recognized that, as a result of Plaintiff’s progress, she is not as
disabled as she alleges. As the ALJ noted, Plaintiff “has shown great
progress with her therapist . . . . [and] has learned techniques to overcome
her anxiety and depressive symptoms, so that she can continue to function
in spite of them.” (A.R. 23.) She is commended for her efforts and
progress, but this certainly does not support Plaintiff’s allegation that the
ALJ used her progress against her.
IV.
Plaintiff next alleges that the ALJ erred by improperly assessing the
opinion of Ms. Girard-Collins in violation of 20 C.F.R. § 404.1527. The ALJ
is required to consider medical opinions and other relevant evidence he
receives. See 20 C.F.R. § 404.1527(b); SSR 06-03p. Although Ms. Girard-
testify to that, as Plaintiff’s counsel argued.
16
Collins is not an “acceptable medical source,”18 the ALJ may use her opinion
“to show the severity of [Plaintiff’s] impairment(s) and how it affects
[Plaintiff’s] ability to function” and must consider it when evaluating an
“acceptable medical source’s” opinion. SSR 06-03p. Factors for evaluating
Ms. Girard-Collins’ opinion include how long she has known Plaintiff, how
frequently she has treated Plaintiff, how consistent the opinion is with other
evidence, the degree to which she presents relevant evidence to support an
opinion, how well she explains the opinion, whether she is a specialist in an
area related to Plaintiff’s impairment, and any other factors that tend to
support or refute the opinion.19 Id.; see also 20 C.F.R. § 404.1527(c). “The
evaluation of an opinion from a medical source who is not an ‘acceptable
medical source’ depends on the particular facts in each case.” SSR 06-03p.
“Each case must be adjudicated on its own merits based on a consideration
of the probative value of the opinions and a weighing of all the evidence in
that particular case.” Id.
18
Acceptable medical sources are licensed physicians, licensed or
certified psychologists, licensed optometrists, licensed podiatrists, and
qualified speech-language pathologists. 20 C.F.R. § 404.1513(a).
19
The factors in 20 C.F.R. § 404.1527(d) explicitly apply to the
evaluation of “acceptable medical sources’” opinions; however, they can be
applied to other opinion evidence. SSR 06-03p.
17
As described above, supra p. 12-14, the ALJ noted that records from
Ms. Girard-Collins “show a progressively improving mood and functioning
from November of 2008 to September of 2009.” (A.R. 21.) See also supra
p. 12-14 n. 12-15. However, on September 25, 2009, five days prior to
the hearing before the ALJ, Ms. Girard-Collins wrote a letter of support that
became part of the record before the ALJ that paints a different picture of
Plaintiff. (A.R. 29, 434-35.) In it, she stated that Plaintiff has been
diagnosed with “Major Depressive Disorder, recurrent, severe and Post
Traumatic Stress Disorder.” (Id. at 435.) She explained that Plaintiff “has
anxiety or panic attacks in which she feels short of breath, dizzy, sweats,
has chest pains and feels like she is falling.” (Id.) According to Ms. GirardCollins, “[t]his severely restricts [Plaintiff’s] ability to be out in public as
panic attacks happen suddenly and without warning.” (Id.) Ms. GirardCollins further opined that Plaintiff’s “ability to function in a public
employment [sic] would be severely limited by her mental health disability.”
(Id.) Plaintiff “tends to worry excessively when out in public” and “has been
unable to sustain more than short periods of time for needed shopping in
stores and for doctors appointments.” (Id.) Plaintiff’s “intense fears and
intrusive thoughts make it difficult for her to concentrate.” (Id.) Plaintiff’s
18
“intense psychological distress would not, in my opinion, allow her to
perform effectively in a public work environment.” (Id.) Ms. Girard-Collins
closed her letter by recognizing that Plaintiff “has demonstrated a
willingness to improve her life” by working to obtain her GED and
participating in therapy, and setting a goal of feeling good about herself and
gaining control of her life. (Id.)
After reviewing the evidence of record, the ALJ noted that he had
“given substantial weight to the medical assessment of the claimant’s
therapist as to the claimant’s diagnoses and symptoms; but not to the
therapist’s ultimate conclusion that the claimant is incapable of working.”
(Id. at 24.) He then stated that “[t]he underlying therapy notes document
great progress in the claimant’s mental symptoms during a 10-month period
of psychotheraphy . . . “ (Id.)
Although the ALJ did not explicitly identify the factors from SSR 0603p that he used to weigh Ms. Girard-Collins’ opinion, it is evident from his
decision that his evaluation included the length of the time that Ms. GirardCollins treated Plaintiff, the frequency of treatment, the consistency of Ms.
Girard-Collins’ opinions with other evidence, the degree to which Ms. GirardCollins presented relevant evidence in support of her opinions, and how well
19
she explained her opinions, among other factors. In his decision, the ALJ
acknowledged that Ms. Girard-Collins had treated Plaintiff from November
2008 to September 2009 and noted both Plaintiff’s subjective reports to
Ms. Girard-Collins and Ms. Girard-Collins’ assessments of Plaintiff during
that time. (Id. at 21.) He repeated throughout his opinion that he carefully
reviewed the entire record (see, e.g., id. at 20) which included Ms. GirardCollins’ treatment notes, as well as her September 25, 2009, letter (see id.
at 20-22, 24, 28-29). It is clear from the evidence and from the ALJ’s
decision that some of Ms. Girard-Collins’ assertions in her September 25,
2009, letter are inconsistent with the other evidence of record, including
Ms. Girard-Collins’ own treatment notes. There is no error in the ALJ’s
assessment of and weight attributed to Ms. Girard-Collins’ opinion.
V.
Plaintiff next argues that the ALJ erred in determining that Plaintiff
was capable of performing past relevant work. Plaintiff focuses her
argument on the ALJ’s statement that “[t]his job is described in the
Dictionary of Occupational Titles (DOT) as requiring medium exertion, and it
is classified as unskilled in nature” after which he concluded “that due to
the claimant’s remaining [RFC] for a wide range of unskilled medium work
20
activity, . . . she can perform the requirements of her past relevant work as
she actually described it” (id. at 24). Doc. #11 at 12-13. Plaintiff alleges
that the ALJ erred by failing to consider the requirements of an automobile
parts factory inspector, as actually or generally performed, failing to cite a
DOT job code, failing to elicit testimony from a vocational expert, and failing
to carefully consider the requirements of Plaintiff’s past relevant work.
At Step Four of the ALJ’s five-step evaluation process, he determines
whether the claimant has the RFC to perform the requirements of her past
relevant work. 20 C.F.R. § 404.1520(f). Past relevant work is work
performed, either as the claimant actually performed it or as it is generally
performed in the national economy, within the last fifteen years or fifteen
years prior to the date that disability must be established. The work also
must have lasted long enough for the claimant to have learned to do the job
and have been substantial gainful activity. Id. at § 404.1560(b).
“Substantial work activity” is work activity that involves doing significant
physical or mental activities. Id. at § 404.1572(a). “Gainful work activity”
is work that is usually done for pay or profit, whether or not a profit is
actually realized. Id. at § 404.1572(b). At Step Four, the claimant still bears
the burdens of production and proof. Pass v. Chater, 65 F.3d 1200, 1203
21
(4th Cir. 1995).
A.
At the hearing before this Court, Plaintiff’s counsel argued that the
failure of the ALJ to provide a DOT code is significant. Tr. 4:14-16.
Plaintiff’s counsel then chose two jobs from the DOT that she thought were
closest to Plaintiff’s past relevant work to argue that both of those jobs
require more than unskilled work, Plaintiff’s RFC limitation. Id. at 5:15-7:2.
The ALJ found that Plaintiff could do her past relevant work as she
described having actually performed it. Therefore, there was no need for
the ALJ to refer to the DOT or invite testimony from a vocational expert to
determine how the work is generally performed. Pass, 65 F.3d at 1207
(“Having found that Pass could perform his job as he did in the past, it is
unnecessary to consult the DOT in order to determine whether Pass would
be able to perform the position of gate guard as it currently exists in the
national economy.”) cited in Finney v. Astrue, No. 1:11CV109, 2014 WL
204213, *6 (M.D.N.C. Jan. 17, 2014) adopted, 2014 WL 791848
(M.D.N.C. Feb. 25, 2014) & aff’d, No. 14-1404, 2014 WL 6845359 (4th
Cir. Dec. 5, 2014) (per curiam).
Furthermore, “[t]he claimant is the primary source for vocational
22
documentation, and statements by the claimant regarding past work are
generally sufficient for determining the skill level, exertional demands and
nonexertional demands of such work.” SSR 82-62. Here, Plaintiff testified
that her last full-time job was in 2006 at Lydol, a company that made heat
shields for vehicles, where she worked as an inspector.20 (A.R. 41-42.) “As
the parts would come off the [production] line, [she] would inspect them
and keep track of the good and the bad parts. [She] would say if there were
so many parts that had to be thrown out because they were bad . . . .” (Id.
at 42.) She would “then pack them and keep count of how much was
packed and shipped.” (Id.) She had “paperwork [she] had to do and if there
were so many bad [she] would have to put down why they were bad and
how much parts went out that night.”21 (Id.)
On her Work History Report, Plaintiff similarly described her job at
Lydol. “I inspected parts that [came] off [the] line to make sure there were
20
The ALJ used Plaintiff’s job at Lydol as her past relevant work. (See,
e.g., A.R. 22.) At the hearing before this Court, Plaintiff’s counsel stated, “I
believe that the ALJ went back to the inspector job . . . , because some of
the jobs that she performed after that, there was a concern of whether or
not they were performed long enough in order to be able to learn them and
to be considered past relevant work . . . .” Tr. 11:23-12:2. See 20 C.F.R.
404.1560(b).
21
Plaintiff also testified about the physical demands of her job at Lydol,
but those are not at issue.
23
no crack[s] & [that they were] cut right (inspected part all over & [gauged]
them[)]. Keep count of bad (scrap) [and] how much [I] packed. I had to
pack parts of for shipment. Do paper work on production.” (Id. at 153.)
She answered “Yes” to questions asking if she (1) used machines, tools,
and equipment, (2) used technical knowledge or skills, and (3) did any
writing, completed reports, or performed duties like this. (Id.) She stated
that she supervised three people eight hours a day, but did not make hiring
or firing decisions and was not a lead worker. (Id.) She further explained, “I
also worked on line trans[ferring] parts from a station to another station on
the machine. While I was there I also trained [people] on different kinds of
machines. As well as inspecting parts.”22 (Id. at 154.) The ALJ had before
him Plaintiff’s testimony, along with a detailed description in her Work
History Report, of her past relevant work at Lydol as she actually performed
it. There was no need to obtain information from the DOT or a vocational
expert about the requirements of the work as generally performed in the
economy.
22
The Social Security Administration worked with Plaintiff to complete
a Disability Report that includes a description of her work at Lydol similar to
the description in the Work History Report. (A.R. 138.) However, in the
Disability Report, it states that Plaintiff did not supervise other people. (Id.)
There is also no mention of Plaintiff training others, as she stated in the
Work History Report. (Id.)
24
B.
As noted above, at Step Four, the claimant still maintains the burden
of proving that she cannot perform her past relevant work. Here, it is
questionable whether or not Plaintiff has done so. She did not testify that
she stopped working at Lydol because of her mental health nor did she
testify that she could not, at the time of the hearing, perform the work she
did at Lydol. Instead, she testified that she was “basically fired because a
lack of transportation. Couldn’t get back and forth.” (A.R. 42-43.) She also
testified that her job at Lydol was the best job she had ever had because it
kept her busy and was fast-paced. (Id. at 43.)
At the hearing before this Court, Plaintiff’s counsel was asked where,
in the record, Plaintiff says, “I can’t do that job I was doing before because
of X.” Tr. 11:2-4. Plaintiff’s counsel responded, “Mainly her biggest -- as
she noted why she wasn’t able to do that job or any job was because of her
panic attacks. Those are documented. . . . She breaks down. She has a
racing heart beat, blurred vision, she can’t function.” Id. at 11:5-11.
Plaintiff’s counsel was asked if Plaintiff was “having those difficulties while
she was doing her job [at Lydol],” to which counsel responded, “No. This is
something that developed later. She alleged onset disability a couple of
25
years after she was, I believe -- “ Id. at 11:15-19. The Court completed
counsel’s sentence, “Terminated for not having a car?” Id. at 11:20.
In fact, in July 2005, Plaintiff reported to her health care provider at
Yadkin County Health Department that she was working at Lydol and since
becoming pregnant she had experienced chest pain and shortness of breath
while at work only. (A.R. 322.) “Depression” was also noted as part of her
medical history at the time. (Id.) Plaintiff also testified that she did suffer
from anxiety while working at Lydol, (id. at 43), and yet she did not quit
working due to anxiety, chest pain, shortness of breath, or depression.
Plaintiff’s counsel also argued at the hearing before this Court that
Plaintiff quit a job she had after her job at Lydol “because of her limitations.”
Tr. 11:22-23. “There were some jobs in between where she was trying to
do other things and eventually just had to call it quits.” Id. at 12:11-13.
The Work Activity Report reflects that Plaintiff reported to the Social
Security Administration that she stopped working or reduced her hours at
jobs she held from the summer of 2006 to October of 2007 because “of my
medical condition.” (A.R. 124-130.) However, the medical condition is not
specified, and Plaintiff clarified in the Disability Report that the medical
condition responsible for her leaving Wayne Poultry in June 2007 was her
26
thyroid issue. (Id. at 136.) She stated that she left the other jobs because
“she got sick,” but did not explain further what she meant. (Id.)
In addition, Plaintiff did not testify that she was unable to do any of
the jobs after Lydol because of her mental health. Her counsel at the
hearing before the ALJ asked, “ . . . [Y]ou said that you – some anxiety also
was – work contributed somewhat to your stopping work. . . . Can you
describe what symptoms of anxiety you had or what you mean by that?”
(Id. at 44.)23 Plaintiff asked a clarifying question, “The symptoms I have
currently?” to which her counsel responded in the affirmative. (Id.) Plaintiff
then described “issues with being social” when she is in a “place that [she
is] not familiar with . . . .” and that she has someone with her when goes
out in public, with the exception of when she goes to school. (Id. at 45.)
Not only does Plaintiff’s testimony not support her argument that she is
incapable of performing her past relevant work, but neither do her medical
records.
The only references in Plaintiff’s medical records to her inability to
23
Plaintiff’s counsel at the hearing before the ALJ mischaracterized
Plaintiff’s testimony about stopping work. Plaintiff had just finished
testifying that she had anxiety while at Lydol, but that it was her best job
and was fast-paced and she was fired for lack of transportation. (Id. at 4243.)
27
work do not support Plaintiff’s argument. In July 2007, Plaintiff was
treated at Yadkin Medical Associates for severe hypothyroidism, which had
gone untreated the year prior. (Id. at 265-267.) She reported having dizzy
spells, apparently related to her untreated hypothyroidism, and her physician
prescribed medication. (Id.) She described feeling better than at her visit
approximately two weeks prior, but was still having intermittent dizzy spells.
(Id. at 266.) Plaintiff reported that she had been working at Wayne’s
Poultry for three months on a production line where she was required to cut
up about thirty chickens per hour. (Id.) She felt like she was not able to
fulfill that requirement at the time of her doctor’s visit and wanted to be
written out of work for a few days. (Id.) The doctor wrote her out of work
from July 9 through July 18, increased her thyroid medication, and
scheduled a return appointment for July 18. (Id.) On July 18, 2007,
Plaintiff returned to the doctor and reported doing better as far as her energy
level, but she still would get “dizzy headed” with sudden changes in
position. (Id. at 265.) She reported not being ready to return to work
“because she works in the poultry industry in production.” (Id.) The doctor
wrote her out of work for two weeks and scheduled a return appointment.
(Id.) When Plaintiff returned to the doctor on August 1, 2007, she reported
28
feeling much better and was ready to return to “regular work.” (Id. at 264.)
Plaintiff’s need to remain out of work in July 2007 for several weeks was a
result of her untreated hypothyroidism, not as a result of her anxiety or its
symptoms.
In addition, in June 2009, Plaintiff’s community support aide through
New River Services Authority’s Adult Community Support program was
assisting Plaintiff in preparing to find employment through the Work First
Program. (E.g., id. at 445-47.) However, on June 19, 2009, Plaintiff,
accompanied by her community support aide, met “urgently” with Dr. Chinn
“stating she is starting in the Work First Program” and “requesting a note
today that she is unable to work.” (Id. at 431.) Dr. Chinn’s note continues,
“The last time she worked on a regular basis was four months in late 2007,
working with chickens, and she notes after that time, she began having
health problems, as well as increased anxiety and has not returned to work
force since then. . . . She continues to have mild depressive symptoms and
anxiety but these have been manageable.” (Id.) Dr. Chinn notes that
Plaintiff is “fearful of returning to work.” (Id.) Dr. Chinn “discussed that the
work may be anxiety provoking but may have significant benefits for her,
including increasing social interaction with others, structure, time away from
29
her constant childcare, likely benefit greatly her mood and self-esteem and
confidence and with support of the Work First Program, as well as initially
limiting her hours, she will have the support to reenter the workforce
gradually.” (Id.) Dr. Chinn indicated on Plaintiff’s form for Social Services
that “she would currently be able to work 20 hours a week for the next 60
days and then may be able to continue on a full-time basis after that point.”
(Id.) Instead of working, though, Plaintiff chose to pursue her GED. (Id. at
428.) Dr. Chinn’s notes do not reveal concern that Plaintiff could not work
due to her mental health impairments. Instead, Dr. Chinn’s notes reflect
Plaintiff’s improving mental health status, see supra n. 9-11 &
accompanying text, and her “fear” of returning to work after being out of
work for approximately two years. Dr. Chinn’s notes suggest that he
believed she was capable of returning to work, particularly if she could
slowly adjust to participating in the workforce.
At the hearing before this Court, Plaintiff’s counsel asserted that
Plaintiff’s past relevant work “involves significant social contact with
supervisors and coworkers for purposes of filling out . . . reports, and
explaining there are defects in the parts.” Tr. 12:19-22. She explained that
Plaintiff “has to bring the report to her supervisor and explain herself as to
30
why this part is defective” and that Plaintiff “is around coworkers constantly
in the setting of a factory.” Id. at 12:25-13:2, 13:4-5. In response to the
Court’s inquiry, “Does she talk about dealing with others or interacting?,”
counsel responded that Plaintiff “did talk about her supervisors.” Id. at
13:14-16. Neither Plaintiff’s Work History Report, Disability Report, or
testimony describes reporting to a supervisor and explaining herself. (See
A.R. 41-42, 138, 153-54.) Counsel then acknowledged that, as for the
“coworker part,” she was “partly making an assumption” because Plaintiff
worked on an assembly line. Tr. 13:16-20. Other than conflicting
references to Plaintiff’s supervising and training workers, (A.R. 138, 15354), there is no evidence as to her interactions otherwise with coworkers on
the assembly line. In sum, Plaintiff’s counsel’s argument before this Court
that Plaintiff’s work at Lydol “involves significant social contact with
supervisors and coworkers for purposes of filling out . . . reports, and
explaining there are defects in the parts” is not supported by the evidence.
Among the reasons that it is unclear whether or not Plaintiff met her
burdens of production and proof is the ALJ’s characterization of Plaintiff’s
past relevant work as unskilled. (See A.R. 24.) Because the ALJ limited
Plaintiff’s RFC to unskilled work, he found that Plaintiff could perform the
31
requirements of her past relevant work and, therefore, was not disabled.
“Unskilled work” is defined as
work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time. The job may
or may not require considerable strength. For example, [the
Social Security Commission] consider[s] jobs unskilled if the
primary work duties are handling, feeding and offbearing, or
machine tending, and a person can usually learn to do the job in
30 days, and little specific vocational preparation and judgment
are needed.
20 C.F.R. § 404.1568(a). The regulations define “semi-skilled work” as
work which needs some skills but does not require doing the
more complex work duties. Semi-skilled jobs may require
alertness and close attention to watching machine processes; or
inspecting, testing or otherwise looking for irregularities; or
tending or guarding equipment, property, materials, or persons
against loss, damage or injury; or other types of activities which
are similarly less complex than skilled work, but more complex
than unskilled work. A job may be classified as semi-skilled
where coordination and dexterity are necessary, as when hands
or feet must be moved quickly to do repetitive tasks.
Id. at § 404.1568(b).
Plaintiff’s testimony and her completed Work History Report more
closely describe Plaintiff’s work at Lydol as semi-skilled work, rather than
unskilled work. Compare A.R. 41-42, 147-54 with 20 C.F.R. § 404.1568(a)
& (b). Because substantial evidence supports the ALJ’s RFC finding, if
Plaintiff’s past relevant work is more accurately characterized as semi-skilled,
32
then Plaintiff may not be able to perform the requirements of her past
relevant work because the past relevant work requires the performance of
work-related activities precluded by her RFC. Accordingly, the case is
remanded to the ALJ so that he may either provide an explanation supported
by substantial evidence as to why he finds Plaintiff’s past relevant work to
be unskilled or a reevaluation of Plaintiff’s past relevant work to reclassify it
so that he may determine if that work requires performance of work-related
activities precluded by her RFC.
VI.
For the reasons set forth above, Plaintiff’s Motion for Judgment on the
Pleadings is GRANTED, Defendant’s Motion for Judgment on the Pleadings is
DENIED, and the case is remanded to the ALJ as instructed above.
This the 29th of December, 2014.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge
33
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