CRABTREE v. COLVIN
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/02/2015; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be granted, and that this action be dismissed with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHARLES MARCUS CRABTREE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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1:13CV26
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff,
Charles
Marcus
Crabtree,
brought
this
action
pursuant to the Social Security Act (the “Act”) to obtain judicial
review of a final decision of Defendant, the Commissioner of Social
Security,
denying
Plaintiff’s
claim
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)
The Court has before it the certified administrative
record (cited herein as “Tr. __”), as well as the parties’ crossmotions for judgment (Docket Entries 11, 16). For the reasons that
follow, the Court should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB and SSI on November 23,
2009, alleging a disability onset date of February 1, 2009.
220-28.)
(Tr.
Upon denial of that application initially (Tr. 74-103,
142-53) and on reconsideration (Tr. 104-35, 158-75), Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”) (Tr. 176).
Plaintiff, his attorney, and a vocational
expert (“VE”) attended the hearing.
(Tr. 41-73.)
By decision
dated July 11, 2011, the ALJ determined that Plaintiff did not
qualify as disabled under the Act.
(Tr. 27-40.)
On June 20, 2012,
the Appeals Council denied Plaintiff’s request for review (Tr. 48), making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2014.
2.
[Plaintiff] has not engaged in substantial gainful
activity since February 1, 2009, the alleged onset date.
. . . .
3.
[Plaintiff] has the following severe impairments:
thoracic disc disease; narcolepsy; sleep apnea; attention
deficit disorder (ADD); osteoarthritis[;] obesity[;]
depression and anxiety.1
. . . .
4.
[Plaintiff] 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.
. . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except he should
avoid activities around unprotected heights and dangerous
machinery. [Plaintiff] is limited to simple, routine,
repetitive tasks. He is capable of lifting/carrying 20
1
The ALJ found that Plaintiff’s hypertension and hypothyroidism constituted nonsevere impairments. (Tr. 32.)
2
pounds occasionally and 10 pounds frequently. In an 8hour workday, [Plaintiff] is capable of standing and/or
walking 6 hours and sitting 6 hours.
. . . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from February 1, 2009, through the
date of this decision.
(Tr. 32-40 (internal parenthetical citations omitted).)
II.
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 [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the 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
3
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.
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) (internal citations and quotation marks
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 (internal quotation marks
omitted).
“In reviewing for substantial evidence, the [C]ourt 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
4
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, 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 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 longstanding medical-vocational
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 sequential evaluation process (“SEP”) 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
2
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . 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).
5
‘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. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
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
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
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
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
6
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
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner 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
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
“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.
5
A claimant thus can establish disability via two paths through the SEP. 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 SEP 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.”).
7
1) “[t]he ALJ erred by giving less than controlling weight to
the opinion of [Plaintiff’s] treating physician . . . [and] by
failing to recontact [that physician]” (Docket Entry 12 at 3);
(2) “[t]he ALJ’s rejection of [Plaintiff’s] testimony was the
result of ‘playing doctor’” (id. at 5);
(3) “[t]he ALJ erred by posing a hypothetical which failed to
inform the VE that [Plaintiff] would have significant difficulty
sustaining concentration to perform simple tasks” (id. at 6); and
(4)
mention
“[t]he ALJ erred by posing a hypothetical that failed to
[Plaintiff’s]
need
for
a
low-stress,
non-production
environment, with low interpersonal demands” (id. at 7).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 17 at 3-16.)
Treating Physician Opinion
In Plaintiff’s first issue on review, he challenges the ALJ’s
evaluation of the opinions of treating physician Dr. Carlton D.
Miller.
(Docket Entry 12 at 3-5 (citing Tr. 546-49).)
Plaintiff
alleges that the grounds cited by the ALJ for rejecting Dr.
Miller’s opinions did not suffice, arguing that “rejection of the
treating
physician’s
opinion
must
be
based
on
‘persuasive
contradictory evidence,’” and citing Johnson v. Barnhart, 434 F.3d
650 (4th Cir. 2005).
(Id. at 4.)
points falls short.
8
Plaintiff’s argument on these
At the outset, Plaintiff’s phrasing of the “treating physician
rule” as including the “persuasive contradictory evidence” language
no longer represents the governing standard.
See Stroup v. Apfel,
No. 96–1722, 205 F.3d 1334 (table), 2000 WL 216620, at *5 (4th Cir.
Feb. 24,
2000)
contradictory
(unpublished)
evidence”
(expressly
standard
and
rejecting
noting
that
“persuasive
“[t]he
1991
regulations supersede[d] the ‘treating physician rule’ from our
prior case law”); Shrewsbury v. Chater, No. 94–2235, 68 F.3d 461
(table), 1995 WL 592236, at *2 n.5 (4th Cir. Oct. 6, 1995)
(unpublished) (observing that, “[a]s regulations supersede contrary
precedent, the cases cited by [the plaintiff] defining the scope of
the
‘treating
physician
rule’
decided
prior
to
[the
1991]
regulations are not controlling” (internal citation omitted));
Brown v. Astrue, Civil Action No. CBD10–1238, 2013 WL 937549, at *4
(D.
Md.
Mar.
8,
2013)
(unpublished)
(deeming
“persuasive
contradictory evidence” a “defunct legal standard” in light of 1991
regulations); Benton v. Astrue, Civil Action No. 0:09–892–HFF–PJG,
2010 WL
(holding
3419272,
that
at *1
1991
(D.S.C. Aug.
regulation
30,
“supersedes
2010)
any
(unpublished)
prior
Fourth
Circuit’s common law treating physician rule that is contrary to
it”); Winford v. Chater, 917 F.Supp. 398, 400 (E.D. Va. 1996)
(finding “persuasive contrary evidence . . . the wrong legal
standard”); Ward v. Chater, 924 F. Supp. 53, 55–56 (W.D. Va. 1996)
(recognizing
that
1991
regulations
9
supersede
“persuasive
contradictory evidence” standard).
Fourth
Circuit
stated
that
an
The fact that, in Johnson, the
ALJ
could
discredit
treating
physician opinion in light of “persuasive contrary evidence,”
Johnson, 434 F.3d at 654 n.5, does not mean (as Plaintiff suggests)
any rejection
of
such opinion
“must
be
based
on
‘persuasive
contradictory evidence’” (Docket Entry 12 at 4 (emphasis added)).
See, e.g. Craig, 76 F.3d at 590 (recognizing that, if treating
source’s opinion “is not supported by clinical evidence or it is
inconsistent with other substantial evidence, it should be accorded
significantly less weight” (emphasis added)).
The treating source rule, as correctly stated, generally
requires an ALJ to give controlling weight to the opinion of a
treating source regarding the nature and severity of a claimant’s
impairment.
20
C.F.R.
§§
404.1527(c)(2),
416.927(c)(2)
(“[T]reating sources . . . provide a detailed, longitudinal picture
of [a claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual
examinations,
such
hospitalizations.”).
as
consultative
examinations
or
brief
The rule also recognizes, however, that not
all treating sources or treating source opinions merit the same
deference.
The nature and extent of each treatment relationship
appreciably tempers the weight an ALJ affords an opinion.
C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii).
10
20
Moreover, as
subsections (2) through (4) of the rule describe in great detail,
a treating source’s opinion, like all medical opinions, deserves
deference only if well-supported by medical signs and laboratory
findings and consistent with the other substantial evidence in the
case record.
20 C.F.R. §§ 404.1527(c)(2)-(4), 416.927(c)(2)-(4).
“[I]f a physician’s opinion is not supported by clinical evidence
or if it is inconsistent with other substantial evidence, it should
be accorded significantly less weight.”
Craig, 76 F.3d at 590
(emphasis added).
In this case, on April 25, 2011, Dr. Miller completed a
Medical
Source
Plaintiff
Statement
suffered
from
(“MSS”)
on
“ADD/sleep
which
he
reported
narcolepsy”
and
that
“severe
osteoarthritis” (Tr. 546) and, as a result of those impairments,
opined that Plaintiff could sit for one hour at a time and for more
than six hours in a work day, could stand and walk for one hour at
a time and for two hours total in a work day, would need to rest in
excess of standard work breaks, and would miss work in excess of
three days per month (Tr. 547-49).
that
Plaintiff’s
concentration”
“narcolepsy
(Tr.
547)
In addition, Dr. Miller noted
med[ication]s
and
that
interfere
Plaintiff
could
with
never
repetitively use either hand for reaching, handling, or fingering
(Tr. 549).
Dr. Miller concluded that Plaintiff’s impairments had
11
“persisted with the restrictions as outlined in [the MSS] at least
(Tr. 550.)6
since . . . 2007.”
Here, the ALJ’s evaluation of Dr. Miller’s opinions complied
with the regulatory requirements.
The ALJ assessed Dr. Miller’s
opinions as follows:
Dr. Miller’s opinion conflicts with his own treatment
records as well as [Plaintiff’s] own statement and
ability to work.
Specifically, Dr. Miller opined
[Plaintiff] was unable to use his hands. There is no
indication in treatment records that [Plaintiff]
complained of hand problems and [Plaintiff] testified
that he drives and is able to lift/carry light bags. Dr.
Miller indicated [Plaintiff’s] narcolepsy medication
impaired his concentration but there are no notations in
treatment
records
that
[Plaintiff]
reported
any
medication side effects. Dr. Miller opined [Plaintiff]
has been so restricted since 2007 but [Plaintiff] worked
full-time
until
2009
despite
the
very
limited
restrictions Dr. Miller assessed. Little weight is given
to Dr. Miller’s opinion.
(Tr. 37.)
As correctly noted by the ALJ, Dr. Miller’s treatment records
did not evidence that Plaintiff ever “complained of hand problems”
(see Tr. 349-52, 390-425, 443-51, 486-506) and thus did not support
Dr. Miller’s opinion that Plaintiff could “[n]ever” use his hands
to reach, handle or finger (Tr. 549).
Plaintiff nevertheless
argues that Dr. Miller’s failure to support Plaintiff’s hand
limitations “does not supply a valid rationale for rejecting [Dr.
Miller’s] other well-founded opinions.”
6
(Docket Entry 12 at 4
The administrative record lacks page 4 of the MSS and, due to that omission,
also lacks Dr. Miller’s responses to questions 14 through 17 of the MSS.
(See Tr. 548-49.)
12
(emphasis in original).)
However, the ALJ did not rely upon Dr.
Miller’s lack of support for Plaintiff’s hand restrictions as the
sole basis to discount all of Dr. Miller’s opinions.
As
described
above
(and
as
Plaintiff
has
at
(See Tr. 37.)
least
in
part
acknowledged (see Docket Entry 12 at 4)), the ALJ also discounted
Dr. Miller’s opinions because his treatment records did not reflect
that Plaintiff ever complained of side effects from his narcolepsy
medication
and
Plaintiff’s
Plaintiff
outlined
worked
Additionally,
observed
because,
in
that
despite
restrictions
full-time
another
Dr.
from
part
Miller’s
of
Dr.
Miller’s
had
persisted
2007
to
since
2009
the ALJ’s
treatment
opinion
RFC
records
that
2007,
(Tr.
37).
analysis,
reflected
he
“that
generally, [Plaintiff was] healthy, well appearing in no acute
distress”
strength
and that
“unremarkable”
bilaterally,
cognition,”
and
normal
normal
examinations
reflexes,
neurological
showed
normal
findings.
“normal
gait,
normal
(Tr.
36.)
Substantial evidence thus supports the ALJ’s decision to discount
Dr. Miller’s opinions in part because his own treatment records
failed to support those opinions.
Plaintiff further disputes the ALJ’s finding that Dr. Miller’s
records do not support his opinion that Plaintiff’s narcolepsy
medications interfere with his concentration.
4-5.)
(Docket Entry 12 at
In that regard, Plaintiff argues that “the known side
effects of
Provigil,
[Plaintiff’s]
13
narcolepsy
medication,
are
anxiety and depression, both of which interfere with concentration”
and that “[i]t is undisputed that [Plaintiff] had anxiety and
depression[] and . . . moderately limited concentration.”
(citing
http://www.drugs.com/sfx/
According
to Plaintiff,
Dr.
(Id.
provigil-side-effects.html).)
Miller
thus
“reasonabl[y]
.
.
.
attribut[ed] part of [Plaintiff’s] concentration limitations to his
medication, even though [Plaintiff] . . . may not have made the
connection between his concentration problems and his use of
Provigil.”
(Id. at 5.)
Plaintiff asserts that the “layman ALJ”
should have re-contacted Dr. Miller about Plaintiff’s medication
side
effects,
“rather
than
jump
to
the
conclusion
physician does not know what he’s talking about.”
that
the
(Id.)
Plaintiff’s argument misses the mark, because Dr. Miller’s
treatment records do not reflect that he diagnosed Plaintiff with
either depression or anxiety as a side-effect of Provigil.
Tr.
349-52,
390-425,
443-51,
486-506.)
Plaintiff’s
(See
argument
attempts to gloss over the critical missing link between the side
effects of Provigil as identified on http://www.drugs.com/sfx/
provigil-side-effects.html and Plaintiff’s diagnoses of depression
and anxiety – i.e., a medical source’s opinion that Plaintiff’s
Provigil caused his depression and anxiety. Plaintiff’s assumption
that his Provigil caused his depression and anxiety constitutes the
very speculation he accuses the ALJ of engaging in.
14
Although Plaintiff urges that the ALJ should have re-contacted
Dr. Miller regarding Plaintiff’s side effects from his narcolepsy
medications, Plaintiff does not claim that any of Dr. Miller’s
treatment records are incomplete, vague, confusing, or missing from
the record.
Thus, the ALJ had sufficient evidence (including two
consultative examinations (Tr. 426-30, 431-37)) upon which to
determine whether Plaintiff suffered any side effects from his
medications and thus had no duty to re-contact Dr. Miller.
See,
e.g., Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (“An
ALJ need recontact medical sources only when the evidence received
is inadequate to determine whether the claimant is disabled.”)
(citing 20 C.F.R. § 404.1512(e)); White v. Barnhart, 287 F.3d 903,
908 (10th Cir. 2001) (“[I]t is not the rejection of the treating
physician’s
opinion
that
triggers
the
duty
to
recontact
the
physician; rather it is the inadequacy of the ‘evidence’ the ALJ
‘receives from the claimant’s treating physician’ that triggers the
duty.”) (quoting 20 C.F.R. § 416.912(e)); Perez v. Chater, 77 F.3d
41, 48 (2d Cir. 1996) (finding no duty to contact when “[t]he ALJ
had before
him
a
complete
medical
history, and
the
evidence
received from the treating physicians was adequate for him to make
a determination as to disability”).
Lastly, Plaintiff maintains that the ALJ should not have
discounted Dr. Miller’s opinions because “Ms. Sarah Cameron, MA,
. . . also stated that [Plaintiff] was disabled by narcolepsy and
15
depression.”
(Docket Entry 12 at 5 (citing Tr. 453).)
However,
the ALJ gave Ms. Cameron’s opinion “little weight,” noting that
Plaintiff’s depression remained “controlled,” that Plaintiff drove
“several times a week,” and that Ms. Cameron’s statement that
Plaintiff “clear[ly] could not complete activities of daily living”
(Tr.
453)
contradicted
psychological
examiner
Plaintiff’s
that
he
“report
to
a
independently
consultative
maintain[ed]
activities of daily living” (Tr. 37 (referring to Tr. 434)).
Notably, Plaintiff did not challenge the ALJ’s decision to discount
Ms. Cameron’s opinion and thus her opinion provides no basis to
afford any additional weight to Dr. Miller’s opinions.
In sum, substantial evidence supports the ALJ’s decision to
discount the opinions of Dr. Miller.
2.
Credibility
Next, Plaintiff asserts that the ALJ erred by “discount[ing]
Plaintiff’s allegations of frequent narcolepsy” and erroneously
found
that
“narcolepsy
disabling.”
unaccompanied
(Docket Entry 12 at 5-6.)
by
cataplexy
cannot
be
Plaintiff emphasizes that
Dr. Miller deemed Plaintiff’s narcolepsy (without accompanying
cataplexy) disabling, and that a physician rather than an ALJ must
resolve such a medical issue.
(Id. at 6.)
Plaintiff alleges that
the ALJ “played doctor” and “found a false reason to disbelieve
[Plaintiff].”
(Id.)
16
Plaintiff’s argument fails for the straightforward reason that
the ALJ did not find that Plaintiff’s narcolepsy could not render
him disabled because it was unaccompanied by cataplexy.
the
ALJ
merely
[Plaintiff’s]
noted
narcolepsy
that
but
“[t]reatment
without
records
cataplexy.”
Rather,
document
(Tr.
35.)
Indeed, Dr. Miller diagnosed Plaintiff with “[n]arcolepsy without
cataplexy” in numerous treatment records.
(See Tr. 406, 408, 410,
413, 416, 419, 444, 498; see also Tr. 476, 534 (wherein Plaintiff
denied cataplexy to other treating physicians).)
The ALJ then
proceeded to discount the severity of Plaintiff’s narcolepsy on the
basis of Plaintiff’s ability to continue driving, the absence of
complaints in the treatment records of falling asleep as frequently
as Plaintiff alleged at the hearing (see Tr. 53-54, 64), and the
lack of “noted objective findings during the many times he was seen
in follow-up over the years” (Tr. 36).
The ALJ’s analysis of
Plaintiff’s credibility with regard to his narcolepsy thus complies
with the Commissioner’s regulations. See 20 C.F.R. §§ 404.1529(c),
416.929(c)
(requiring
ALJs,
in
evaluating
the
intensity,
persistence, and limiting effects of a claimant’s symptoms, to
consider the objective medical evidence; the claimant’s daily
activities; the location, duration, frequency, and intensity of
symptoms; any side effects of medications; any treatment other than
medication; and any other measures used to relieve symptoms).
17
Accordingly,
the
Court
should reject Plaintiff’s second
assignment of error.
3.
Hypothetical Question
In his third and fourth assignments of error, Plaintiff takes
issue with the ALJ’s hypothetical question to the VE. According to
Plaintiff,
the
ALJ’s
hypothetical
question
failed
to
include
Plaintiff’s “significant difficulty sustaining concentration to
perform simple tasks” (Docket Entry 12 at 6 (citing Tr. 437)) and
his “need for a low-stress, non-production environment, with low
interpersonal demands” (id. at 7 (citing Tr. 95, 97, 130, 437)).
Plaintiff’s argument provides no basis for relief.
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 (table), 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.
(table),
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,
18
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 to concentration, persistence, or pace”); Cox
v. Astrue, 495 F.3d 614, 620 (8th Cir. 2007) (holding that proper
hypothetical questions need only capture “the concrete consequences
of a claimant’s deficiencies”).
a.
Limitation on Concentration
At step three of the SEP, the ALJ found that Plaintiff’s
depression and anxiety did not meet or equal any of the listed
impairments (Tr. 33-34) but, as part of that analysis, assessed
Plaintiff with “moderate” limitation in concentration, persistence,
and pace (Tr. 33). The ALJ then formulated Plaintiff’s mental RFC,
finding that, despite his moderate difficulties concentrating, he
remained capable of performing “simple routine repetitive tasks.”
(Tr. 34.)
As part of the ALJ’s analysis of Plaintiff’s mental RFC,
the ALJ expressly considered consultative psychologist Dr. Jonas A.
Horwitz’s opinion that Plaintiff would have significant difficulty
sustaining concentration to perform simple tasks (Tr. 437), but
ultimately gave that opinion “little weight” (Tr. 38).
In that
regard, the ALJ noted that Dr. Horwitz’s opinion contradicted Dr.
Miller’s assessment that Plaintiff’s pain “[s]eldom” interfered
19
with his attention and concentration.
(Id. (citing Tr. 547).)7
Although Plaintiff correctly remarks that Dr. Miller did state that
Plaintiff’s
narcolepsy
medications
interfered
with
his
concentration (see Docket Entry 12 at 7 (citing Tr. 547)), as
discussed above, the ALJ properly discounted that opinion as
unsupported by Dr. Miller’s own treatment records (Tr. 37). As the
ALJ’s rejection of Dr. Horwitz’s opinion regarding Plaintiff’s
difficulty concentrating did not constitute error, the ALJ also did
not err by failing to include such a limitation in his hypothetical
question to the VE.
b.
Limitation to Low Stress Jobs and Low Interpersonal
Demands
Plaintiff maintains that the ALJ’s hypothetical should have
included a limitation to low stress jobs based upon the opinion of
state agency psychologist Tovah M. Wax that Plaintiff required “a
low stress env[ironmen]t with low production.” (Docket Entry 12 at
7 (citing Tr. 95).)
According to Plaintiff, both state agency
psychologist Dr. Clifford H. Charles and Dr. Horwitz supplied
opinions consistent with Dr. Wax’s “low stress” opinion.
(Id.
(citing Tr. 130 (containing Dr. Charles’s opinion that Plaintiff’s
7
Additionally, the ALJ remarked that Plaintiff’s concentration during Dr.
Horwitz’s examination “appeared adequate” (Tr. 37), which finds support in
Plaintiff’s ability to sufficiently respond to most of Dr. Horwitz’s mental
status questions intended to assess Plaintiff’s orientation to time, person,
place, and purpose; fund of knowledge; ability to calculate; abstract thinking;
judgment; memory; and concentration (Tr. 434-36). Indeed, the only references
in Dr. Horwitz’s report of difficulty concentrating, beyond the opinion at issue,
occur where Dr. Horwitz recited Plaintiff’s subjective complaints of decreased
concentration. (Tr. 433, 434, 437.)
20
“overall adaptive and stress tolerance capacity [was] moderately
compromised”),
437
(reflecting
Dr.
Horwitz’s
opinion
that
Plaintiff’s “significant sleep disorder would significantly impair
[Plaintiff’s]
ability
to
tolerate
the
stress
and
pressures
associated with day to day work activity”)).)
Contrary
to
Plaintiff’s
assertions,
substantial
evidence
supports the ALJ’s omission of a limitation to low stress jobs from
the hypothetical question.
Significantly, both Plaintiff and his
wife rated Plaintiff’s ability to handle stress on Function Reports
as “[o]verall good” and “well,” respectively.
(Tr. 256, 264.)
Further, Plaintiff’s treating physician, Dr. Miller, noted on his
MSS that Plaintiff had “[n]o limitation” dealing with work stress.
(Tr. 547.)
With regard to Dr. Charles’s opinion, although he did
find Plaintiff’s “overall adaptive and stress tolerance capacity
moderately compromised” (Tr. 115), he nonetheless concluded that
Plaintiff remained capable of simple, routine, repetitive tasks
(“SRRTs”), and did not include an express limitation to low stress
jobs (id.).
The ALJ gave Dr. Charles’ opinion “great weight” (Tr.
38), and limited Plaintiff to SRRTs in the RFC determination (Tr.
34).
Finally, the ALJ gave Dr. Horwitz’s opinion that Plaintiff
had significantly impaired ability to tolerate work stress and
pressure “little weight” because such opinion conflicted with Dr.
Miller’s finding that Plaintiff had “[n]o limitation” in his
ability to tolerate stress.
(Tr. 38; see also Tr. 437, 547.)
21
Finally, Plaintiff argues that the ALJ should have included a
restriction
to
jobs
with
“low
interpersonal
demands”
in
his
hypothetical, based upon the opinion of Dr. Wax, in conjunction
with the Psychiatric Review Technique, that Plaintiff required an
“env[ironmen]t with low . . . interpersonal demands.”
Entry 12 at 7 (citing Tr. 95).)
(Docket
However, Dr. Wax also assessed
Plaintiff’s mental RFC, which requires a more detailed assessment
than the Psychiatric Review Technique.
See Social Security Ruling
96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184, at
*4 (July 2, 1996).
In that RFC, Dr. Wax found that Plaintiff had
no social interaction limitations (Tr. 86), as did Dr. Charles (Tr.
114).
Substantial evidence thus supports the ALJ’s omission of
“low interpersonal demands” from the hypothetical.
In sum, Plaintiff’s third and fourth assignments of error fail
as a matter of law.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
11)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 16)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 2, 2015
22
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