FOLTZ v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 1/23/2015, that the Commissioner's decision is supported by substantial evidence. Accordingly, this Court RECOMMENDS that Plaintiffs Motion for Judgment on the Pleadings (Docket Entry 9 ) be DENIED, Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be GRANTED and the final decision of the Commissioner be upheld. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JEFFREY ALLAN FOLTZ,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.
t14CV55
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Jefftey ,{llan Foltz, brought this action pursuant to Section 205(9) of the
Social Secutity Act (the "-,{.ct"), as amended (42 U.S.C. $ a05(g), to obtain review of a FtnaI
decision of the Commissionet of Social Secudty denying his claims fot a Petiod of Disability
("POD') and Disability Insurance Benefits ("DIB") under Title II of the Act. The Court
has
befote it the certified administtative recotd and ctoss-motions for judgment.
I.
PROCEDURAL HISTORY
Plaintiff filed an application fot
onset date of November 24,2007
a
POD and DIB on July 23,201.0 alleging
. (fr. 15, 27 , 1,1.6-1,9.)1 The application
a disability
was denied initially
and again upon teconsidetation. Qd. zt 56-85, 90-97.) Plaintiff then requested a headng
before an Administrative LawJudge
wete Plaintiff, his
^ttotîey,
("ALJ").
(Id. at 100-02.) At the J:une 1,4,201,2heanng
and a vocational expett
('1¡E,"). (Id. at25-55.) The ÂLJ
detetmined that Plaintiff was not disabled undet the Âct. (Id. at 15-24.) Plaintiff requested
1
Transcrþt citations refer to the administrattve record. (Docket Entry 7.)
that the Âppeals Council teview the AIJ's decision. (Id. at 10-11.) OnJuly 27,201.2the
,A.ppeals
Council denied Plaintiffs request for review, making the ÂLJ's detetmination the
Commissionet's final decision fot purposes of review. (Id.
^t
1.-5.)
II. FACTUAL BACKGROUND
Plaintiff was 35 yeats old on the alleged disability onset date. (d. at23,11.6.) He had
at least a high school education and was able to communicatein
English. (Id. at23.)
III. STANDARD FOR REVIEW
The Commissionet held that Plaintiff was not under a disability within the meaning
the
of
,{.ct. Undet 42 U.S.C. $ 405(9), the scope of judicial teview of the Commissionet's final
decision is specifìc and
nattow. Snitb u. Schweiker,795 F.2d 343,345 (4th Cir. 1986). This
Coutt's review of that decision is limited to determining whether there is substantial evidence
in the tecotd to support the Commissionet's decision. 42U.5.C.
993 F.2d
3'1.,
34 (4th Cir.
1,992); Hals u. Sulliuan, 907
$ a05G); Hanter u. Salliuan,
tr.2d 1453, 1,456 (4th Cir.
1990).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate
to support
(1971)).
a conclusio
It
n." Hunter, 993 F .2d at 34 (cinng
Nchardson u. Perales, 402 U.S. 389, 401.
"consists of more than a mete scintilla" "but may be somewhat less than
preponderatrce." Id. (qtonng
L^aws u. Celebreqqe, 368
a
F.2d 640, 642 (4th Cir. 1,966)).
The Commissionet must make findings of fact and tesolve conflicts in the evidence.
Ha1s,907 F.2d
^t
1.456 (citing King u. Calfano, 599
does not conduct a de novo teview
Schweiker,
795 tr.2d at 345.
In
F.2d
597
, 599 (4th Cir. 1,979)). The Cout
of the evidence not of the Commissioner's
reviewing
fot
2
fìndings.
substantial evidence, the Coutt does not
undettake to te-weigh conflicting evidence, to make credibility determinations, or to substitute
its judgment fot that of the Commissioner. Craig u. Chater, 7 6 tr.3d 585, 589 (4th Cit. 1996)
(citing Hryt,907 tr.2d
^t
1,456). 'îX/here conflicting evidence allows teasonable minds to
diffet as to whether a claimant is disabled, the responsibility for that decision falls on the
[Commissionet] (ot the [Commissioner's] designate, the ÂIJ)." C*t5,76tr.3d at 589 (quoting
lYalker u. Bowen,834 F.2d 635, 640 (7th Cir.
1987). The
denial of benefits will be tevetsed
only if no teasonable mind could accept the record as adequate to suppott the determination.
See
Nchardson
u.
Pera/es,402 U.S. 389,401,
(1971). The
issue before the Coutt, thetefote, is
not
whethet Plaintiff is disabled, but whethet the Commissionet's finding that Plaintiff is not
disabled
is supported by substantial
application of the televant
law.
evidence and was teached based upon
coffect
Bowen,829 tr.2d 514, 51.7 (4th Cit. 1,987).
id.; Cofnan
u.
AL
See
a
DI
The Social Security Regulations define "disability" for the purpose of obtaining
disability benefits as the 'lnability to do any substantial gainful activity by reason
of
any
medically detetminable physical or mental impaitment2 which can be expected to result in
death or which has lasted or
c
rrbe expected to last for a continuous pedod of not less than 12
months." 20 C.F.R. S 404.1505(a);
see
al¡o 42 U.S.C. S 423(dX1XÐ.
To meet this definition,
a clatrnant must have a severe impairment which makes it impossible to do previous work or
'
A "physical or mental impairment" is an impairment resulting ftom "anatomical, physiological, or
psychological at¡normalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques." 42 U.S.C. S 423 (dX3).
a
3
any other substantial gainful acivity3 that exists
404.1,505(a);
see
also 42
U.S.C.
S
A.
'fhe Commissioner follows
is disabled, which is set
in the nalonal economy. 20 C.F.R. S
423(dX2XÐ.
The Five-Step Sequential Analysis
a
five-step sequential analysis to ascettain whethet the claimant
foth in 20 C.tr.R. \ 404.1520.
See
Albrigltt
u. Corurz'r of Soe Sec.
Admin.,
1,74F.3d 473,475 n.2 (4th Cu. 1,999). The ALJ must determine in sequence:
(1)
Slhether the claimant is engaged in substanlal gainful activity Q.e.,whether the
claimant is working).
Q)
If
so, the claimant is not disabled and the inquiry ends.
Whether the claimant has a severe impaitment.
If not, then the claimant
is not
disabled and the inquiry ends.
(3)
IØhether the impaitment meets ot equals to medical críteria of 20 C.F.R., Patt
404, Subpatt P, -r\ppendix 1, which sets
foth
a
list of impafuments thatwartant
a
findingof disabilitywithoutconsidedngvocationalcritetia. If so, theclakna¡tis
disabled and the inquiry is halted.
(4)
Whether the impairment prevents the claimant ftom perfotming past relevant
work. If not, the claimant
(5)
is not disabled and the inquiry is halted.
W.hether the claimant is able to perfotm any othet work considering both his
residual functional capacitya and his vocational abilities.
If
so, the claimant is
not disabled.
t
"S,lbrtuntial gainfirl acdvity" is work that (1) involves perfotming significant ot producdve physical
ot mental duties, and Q) is done (ot intended) for pay or ptofit. 20 C.F.R. S 404. 1 51 0.
a
"Residual functional capacity" is the most a claimantcan do in
4
a
work setting despite the physical and
20 c.F.R.
S
404.1520
FIere, the
AIJ ftst
determined that Plaintiff had not engaged in substantial gainful
activity since his alleged onset date of November 24,2007 . Çr. at 1.7 .) The AIJ next found
in
step two that Plaintiff had the following severe impairments: bipolat disorder; panic
disotder; personality disorder; diabetes mellitus; hypetension; and obesity.
(Id.) Ât
step
thtee, the ALJ found that Plaintiff did not have an impairment or combination of impairments
listed in, or medically equal to, one listed
in Appendix 1. (Id.) At step fout, the Á,LJ
concluded that Plaintiff could perform his past relevant wotk as a warehouse
22.) At
worker.
(Id. at
step fìve, the ALJ detetmined alternatively that considering Plaintiffs age, education,
work experience, and RFC, there wete jobs in the national economy that Plaintiff could
petform such
as cleanet and assembly line
B.
wotket.
(Id. at23-24.)
Residual Functional Capacity Determination
Pdor to step four, the ALJ determined Plaintiffs RFC based on his evaluation of the
evidence, including Plaintiffs testimony and the fìndings of treating and examining health cate
ptovidets. (Id. at 1,9-22.) Based on the evidence as a whole, the AIJ detetmined that
Plaintiff tetained the RFC to perform medium work, except that he could never climb laddets,
ropes or scaffolds, and could only occasionally balance, stoop ot
was futher required
to avoid concentrated
exposure
to
ctouch. (Id. at1.9.) Plaintiff
operational conttol
of
moving
machinery andhazardous machinery and working at unprotected heights. Qd.) Plaintiff was
mental limitations
404.1545(a)(7);
of her impairment and
see also
Hines
a
Barnbart,453
any related symptom (e.g.,
pan).
20 C.F.R.
S
includes both
a
See
F3d 559,562 (4th Cir. 2006). The RFC
"physical exertional or sttength limitadon" that assesses the claimant's "abiJity to do sedentary,light,
medium, heav!, or very heavy work," as well as "nonexertional limit¿tions (mental, sensory or skin
impairments)." Hall u. Harris,658 F.2d 260,265 (4th Cir. 1981).
5
futhet limited to simple, toutine, repetitive
tasks
in
a
work environment free of fast paced
ptoduction tequirements, involving only simple, wotk-telated decisions with feq if any, work
place changes.
(Id.)
Finally, Plaintjff was limited
to work tequiring only occasional
interaction with the public and co-workers with no tandem tasks. (Id.)
C.
The
Past Relevant Work
AIJ found in step four that Plaintiff was capable of petfotming past televant wotk
as a watehouse wotket, which did not require the performance
ptecluded by Plaintiffs
RFC.
Qd.
D.
of wotk-telated activities
at22.)
Adiustment to Othet Work
The claimant bears the initial burden of proving the existence of a disability. 42U.5.C.
S
423(dX5); 20 C.tr.R. S 404.1,51,2; Smitlt u. Calfano,592tr.2d 1235,1,236 (4th Clr. 1,979). Once
the claimant has established at step four that he cannot do any work he has done in the past
because of his sevete impairments, the burden shifts to the
Commissioîet
^t
step fìve to show
that jobs exist in significant numbers in the national economy which the claimant could
petform consistent with his RFC,
age, education, and past
.
Hunter,gg3 F.2d
,{IJ
found that given
work expetience
at 35; lYilson u. Califano, 61.7 F.2d 1050, 1053 (4th Cir. 1980). Flere, the
Plaintiffs age, education, work experience, and RFC, thete were other jobs existing in
significant numbets
assembly line
in the national economy that he could perform such as a clearter and
worket.
(Id. at 23-24.)
Y.
ANALYSIS
Plaintiff essentially raises three issues. First, Plaintiff contends that the ALJ ered by
6
failing to affotd conttolling weight to the opinion of Plaintiffs treating psychiatrist, Dr.
Raymond
-{ndtew. pocket Entty
1,0
at
2.)
Second, Plaintiff next contends that the
.A.LJ
ered by failing to address the factors cited in Social Security Ruling 06-03p. (Id.) Last,
Plaintiff asserts that the ALJ etred by failing to include, both in the RFC and in
to the VE,
and a
a
a
hypothetical
limitation permitting Plaintiff to "take breaks as needed to manage his anxiety"
testtiction addressing his moderate limitations in the ability to concentrate.
Qd.)
A. The ALJ Complied With the Treating Physician Rule.
Plaintiff argues that the AIJ erred by declining to give conttolling weight to the opinion
of his treating psychiatrist, Dr. Raymond Ândrew. pocket Entty
1,0
at3-9.) The "treating
physician rule," 20 C.F.R. S 404.1,527 (c)(2) generally ptovides more weight to the opinion of a
tteating soutce, because
it may "provide a detailed,
longitudinal pictute of fthe claimant's]
medical impairmentþ) [which] may bdng a unique petspective to the medical evidence." 20
C.tr.R. S 404J,527 (.)(2).u But not all treating sources arc created equal. An ALJ refusing to
accotd conttolling weight to the medical opinion of a tteattne physician must consider various
"f^ctors" to determine how much weight to give
it.
Id. S 404.1,527(c)Q)-$). These factots
include: (i) the ftequency of examination and the length, nature and extent of the treatment
t
962p ptovides that "Controlling weight may not be given to a úeaitngsource's medical opinion
unless the opinion is well-suppotted by medically acceptable clinical and laboratory diagnostic
techniques." SSR 96-2p, GiuingConrrollinglf/eight ro TrearingSoarce Medical Opinions. Howevet, where
"a tteat)ng source's medical opinion is well-suppotted and not inconsistent with the other substantial
evidence in the case record, it must be given conftolling weight." Id. SSR 96-5p provides furthet
SSR
never entitled to conttolling
that "treadng sorrrce opinions on issues reserved to the Commissiorter
^ne
weight or special significance." SSR 96-5p, Medical Source Opinions on Issues Reseraed lo tbe Commissioner.
However, "opinions ftorn any medical source about issues teserved to the Commissioner must never
be þoted, and . . . the nodce of the determination ot decision must explain the considetation given to
the treating source's opinion(s)." 1/.
7
relationship; (ü) the evidence in support of the tteating physician's opinion; (üi) the consistency
of the opinion with the recotd
as a
whole; (iv) whether the opinion is from a speciaìist; and (v)
other factors btought to the Social Secutity r{.dministration's attention that tend to support or
contradict the opinion. Id.
Significantly, as subsections (2) through (4) of the
de
describe in gteat detail,
source's opinion, like all medical opinions, must be both well-suppoted by medical
laboratory findings
Id. S 404.1,527
is inconsistent
as
trng
and
well as consistent with the other substantial evidence in the case tecotd.
(c)Q)-@. "[]f u physician's opinion
is not suppotted by clinical evidence or
with other substantial evidence, it should be accotded significantly
C*tg, 7 6 tr .3d at 590;
^úe
sþs
accord
Mastro
u.
Apfel,
27
0 at
17
8.
less
if
it
weight."
Opinions by physicians tegarding the
ultimate issue of whether a plainttff is disabled within the meaning of the ,A.ct nevet receive
conttolling weight because the decision on that issue remains fot the Commissioner alone. 20
c.F.R.
S
404.1s27(d).
FIere, in his Decision, the ALJ evaluated Dt. ,,\ndtew's opinions as follows:
The claimant began medical treatment with psychiattist
Raymond ,{ndtews in June 2010 for bipolar disotder and panic
disotder. The claimant had been previously treated by Dt.
Andtews several yeats eadiet. The undetsigned gives only
parttal weight to Dr. Raymond Andrew's August 24, 2010
statement the claimant was totally and petmanendy disabled by
his bipolat disotdet and sevete panic attacks. The opinion
expressed is quite conclusory, inconsistent with treatment
recotds, and provides very little explanation of the evidence
telied on in forming that opinion. Notably, while the mental
status evaluation dated the same day as the statement indicated
that the claimant was severely anxious, the claimant was also
descdbe as attentive, with no cognitive defìcits, apptopdately
dressed, coopetative, not agitated, and only mildly depressed.
Futhermote, the claknant was assigned a Global Assessment
8
Functioning (GAtr) score of 50, which is indicative of an
individual who has bordetline setious/modetate symptoms or
difficulties in social, occupational, or school functioning. In
addition, at the time of this opinion statement, Dt. Andrew's
recent treatment history with the claimant has been quite brief; he
has seen the claimant on two or three occasions over the previous
two months. It appeats that Dr. Andtews relied quite heavily on
the subjective report of symptoms and limitations ptovided by
the claimant, and seemed to unctitically accept as true most, if not
all., of what the claimant teported. Finally, this opinion is
offeted orr an issue teserved to the Commissionet, who is the
ultimate arbiter of the issue of disability.
Similady, the undersigned gives only parttalweight to Dr.
,{.ndrew's Match and June 201,2 opinons that the claimant is
totally disabled and in fact are somewhat contradictory. Match
21,,2072tecotds at one point state that the claimant has a Gr\F of
40 and at another point note it as 50. Notably, in Match 201.2,
the claimant's primary complaint was insomnia. At that time,
while tecords indicate that the claimant was depressed and had
tacing thoughts, no mention of panic attacks was made. Dt.
Andtews'June 20'1,2 statement that the claimant was matkedly or
extremely impaired in almost every work telated psychiattic
limitation appears gtossly ovetstated. He stated that the
claknant was markedly impaired even in his ability to caffy out
very short and simply instructions and extemely limited in his
ability to make simple work related decisions. This opinion is
not suppotted by the treatment recotds and inconsistent v/ith
psychologrcal consultative examination tecotds descdbed below
stating that the claimant demonstrated the abiJity to engage in
complex activitie s tequiting attention, c oncentration, p etsi s tence
and memory. @,xhibits 8F and 10F.)
Çr.
20-21, tefetencing
In
Tr. 376-94,41.9-27.)
short, the -ALJ concluded that Dr. Andtew's opinions were (1) conclusory, (2)
inconsistent with treatment tecords, (3) with little attendant explanation of the evidence relied
on in forming that opinion, (4) intemally contradictory, (5) largely reliant on Plaintiffs own
subjective complaints, and (6) weighing in on matters reserved for the Commissioner. The
9
ALJ's comprehensive assessment of Dr. Andtew's opinions, and his decision to only parld.ally
diminish his teliance on those opinions, are supported by substantial recotd evidence fot the
very reasons the -,\LJ cites.
First, the ALJ is correct that Dr. .A.ndrew's opinions ate rendered
fashion. As both the
A{
in a conclusory
and Defendant point out, Dr. Andtew's ptovides little-to-no
explanation of the evidence used to form his opinions and the tecord generally lacks objective
medical evidence
in suppott of his conclusory allegations. (Ir. 376-94,4L9-27.)
Sæ 20
C.F.R. S 404.1,527(c)(3) þtating that the better explanation a source provides for an opinion,
the more weight the Commissioner gives that opinion). Thete is, fot example, no indication
that Dr. Andrew concluded any tests on
Plaintiff. Instead, Dt. ,{.ndtew
appears to have been
teþing in large pàt\ or perhaps exclusively, on Plaintiffs own self-reporting. 20 C.F.R.
S
404.1529 (claimant's allegations alone ate insufficient to establish disability).
Second, Dr. Andrew's conclusions are inconsistent with the remaindet of the record.
See Roberts u. Astrae, 1:11-cv-00236-MR, 2013
WL
663306, x6 CX/.D.N.C. Feb. 22, 201,3)
(concluding that "an opinion of a treating physician is not entided to conttolling weight if it is
unsupported by medically acceptable clinical and laboratory diagnostic techniques and/ot
inconsistent with other substantial evidence of tecotd") (citing 20 C.F'.R. S
404.1,527
(.XZ)).
For example, the records of Plaintiffs primary care physician, Dt. Stephen G. Bissette,
demonsttate that Plaintiffs was generally in no apparent disuess and his purpoted symptoms
were minimal
or
adequately treated
Sune/September 2007
-
with medication. (Tt. 332-50,
395-4"1.8, 340-41,
"doing very well" and "[f]eels the best that he has in a long time"),
10
334-39,337 Q/19/09
-
"Bipolar disotdet, doing well on I(lonopin and Lexapto!'),395
-
3/19/2012 ("He has a normal mood an affect. His behavior is normal. Judgment and
thought content normal.").) Dt. John F. Watten, a
sta;te
^geflcy
medical consultant, also
provided a detailed report complete with psychological testing, a clinical interview, and
'Waren
noted some indications of symptom exaggeration,
observations. (Id. at 355-75.) Dr.
corìcerns about possible malingedng, and other conflicting accounts ptovided by Plaintiff and
in the record. Gr. 355-56, 360, 365, 367, 371,.) In peninent p^tt, Dt. Watten discounted
PlaintifPs statements and concluded that he was capable
of performing routine, repetitive
wotkplace tasks with limited social interaction ot multi-tasking.6 Çr.372.)
Third, Dr. Andrew's opinion is inconsistent with his own treatment notes. In his visits
with Plaintiff post-disability claim, Dr. ,{.ndrew - in '{.ugust
claim was filed
-
201.0, one
month aftet the pending
concluded that Plaintiff was "totally and permanently disabled" due to his
alleged mental impairment.
Çr. 379.) However, Dt. Andtew simultaneously noted that
Plaintiff showed no cognitive defects and was alett, well-oriented, and coopenttve.
Likewise, recotds from Plaintiff
s
(Id.).
visits to Dr. Andtew in 201L also lack any objective evidence
but, nevertheless, Dr. Andrew determined that Plaintiff was sevetely deptessed
and
of stress," debilitating pantc attacks, ncing thoughts, inattentiveness,
and
expetienced "lots
suicidal
intent. Qr.376-78,387,421,.) Also, in his Match 20'1,2 tte*ment notes, Dr. Andtew
contradicted the above-teferenced allegations and stated:
u
It is true that Dr. Warren also concluded Plaintiff would have some diffrcutty in maintaining
consistent, full-time employment, due to an alleged need to take breaks as needed to manage his
anxiety. Çr. 372.) However, as explained herein, the ALJ's decision to partially discount Dr.
'Vl'atten's
conclusion in this regardwas supported both by substantial evidence and by an RFC which
ptoperþ accounted for Plaintiffs limitations, which is also supported by substantial evidence.
11
Mental status: The patient is overweight large pleasant
white male who has fatÃy flat affect. No evidence of formal
thought disotder. He is moderately depressed. Prrmary complaint
is that of insomnia. He has his c:ircadian thythms upside down.
He is neithet suicidal nor homicidal. He is not acutely psychot[ic].
Qt
41,9). Âdditionally, Dt. .,\ndrew made no mention of Plaintiffs alleged panic attacks
andf
or symptoms telated thereto and his bipolar disorder is descdbed
as being
tn "par:j,al
temission." (Id.)
Dr. Andtew also submitted anothet contradictory opinion inJune 201,2n a checkbox
form to document Plaintiffs aileged functional limitations. (Id. at 423-27.) Contary to his
March 201,2 assessment, hete, Dt. Ândrew assetted that Plaintiff is a "rapíd cycling bipolat
þatient]" experiencing panic attacks and
opined that Plaintiff was "markedly"
sevete
or
insomnia. (Id. at 424.) Dt. Andtew futhet
"extremely" impaired
limitations," extremely restricted in activities
in all but a few "wotk
of daily living and social functioning,
expetiencing continual episodes of deterioration or decompensation. (Id. at 427
.)
Dt. Andtew provided no explanation or evidence in support of these conclusions,
the
ALJ.
and
Flowever,
as noted by
(Id. at21).
Fourth, as noted above, opinions by physicians tegarding the ultimate issue of whether
a plainttff is disabled within the meaning of the -Act never receive conttolling weight because
the decision on thatissue remains fot the Commissioner
alone. 20 C.F.R. S 404.1527(d). Dr.
Andrew states a number of times in the tecord in a conclusotT fashion that Plaintiff is
completely disabled.
(See, e.g.,
Tr. at
37
6, 4L9.) Flowever, that is an issue reserved for the
Commissionet.
't2
Last, Plaintiffs argums¡¡s-v/hich essentially ptopose alternative ways to view and
weigh the evidence-on this issue are not persuasive. @ocket Etttty 1'0 at 3-9.) The fact
that plaintiff disagrees with the ÂLJ's assessment of this evidence does not rendet the decision
improper. For all these reasons, the ALJ's decision to
parttalTy discount the medical opinions
of Dt. Andrew is supported by substanttal evidence.
B.
The ALJ Addressed the Relevant Regulatory Factors.
Next, Plaintiff alleges that the ALJ failed to addtess the factots set fotth in Social
Security Ruling (SSR) 06-03p
in evaluating the weight of Dr. ,\ndrew's opinion. pocket
Etttty 10 at 10-11.) This claim lacks medt and should be distegarded.
Specifically, SSR 06-03p was issued by the Âgency
"[t]o clad$' how we consider
opinions from sources who are not'acceptable medical sources'. . . ." SSR 06-03p,2006 \)ØL
2329939,
at*'|.. Only "acceptable medical sources" can ptovide medical opinions
considered
and may be
for controlling weight. 20 CFR S 404.1,527(a)(2), (c). Here, the AtJ
concluded that Dr. .{ndtew was not ùn"acceptable medical source."
never
Çr20-21..) Moteovet,
Plaintiff does not allege otherwise and it is uncleat why SSR 06-03p is offeted in support of his
argument. Plaintiff's argument fails fot this reason alone.
In
any event, SSR 06-03p contains a
bdef summary of the regulations governing the
evaluation of opinion evidence, which is what Plaintiff appeats to be teferencing. Specifìcally,
as noted above, an
N,J refusing to accotd controlling weight to the medical opinion of
a
treating physician must consider various "factors" to detetmine how much werght to give it.
20 C.tr.R. S 404.1,527GX2)-(6). Âs further explained above, these factots include: (i) the
13
frequency of examination and the length, naflre and extent of the treatment relationship; (ü)
the evidence in support of the tteating physician's opinion; (iri) the consistency of the opinion
with the recotd as a whole; (iv) whether the opinion is ftom a specialist; and (v) other factors
brought to the Social Security Administration's attention that tend to support or conttadict the
opinion. Id. The AIJ
need not discuss all of these factots, but must give good reasons
the weight assþed to a treating source's
96-2p,1996 \)fL 3741.88, at*5;Fit7¿erald
opinion.
u. Coluin,
See,
e¿.,20 C.tr.R. S 404.1,527 (cX2); SSn
No. 2:12-CV-78-D, 201.3WL 6178563, at*4
(E,.D.N.C. Nov. 25, 2013) (unpublished) (collecting cases); IØare
2072
fot
a.
Astrue, No. 5:11-CV-446-D,
WL 6645000, at x 2 @..D.N. C. D ec. 20, 201,2) (unpublished).
Flere, as demonstrated above, the,AIJ considered the relevant
undersigned has akeady described the application
more than
a
factors. Given that the
of these factots, this issue requires little
brief recapitulation. First, the AIJ noted that while Dr. Andrew began managing
PlaintifÎs medications in June 201.0, he previously tteated Plaintiff
20.) The AfJ
several years
eatliet.T
(ft
also summarized Dr. ,\ndtew's treatments notes, ptiot to atüibuting weight to
his opinions. (Id.
^t20-21,.)
Consequently, the
and the length, nature and extent
considered the supportability
AIJ
consideted the ftequency of examination
of the treatment telationship.
Second, the
AIJ
also
of Dr. ,\ndtew's medical opinions and concluded, with
justifìcation, that they were conclusory, with little ot no support, and were based in latge patt
or entirely upon PlaintifPs self-teporting of his symptoms. (Id. at 20.)
Coluin,
No. 1:12-CV-801,
201.4
WL
3547387
,
ú
t
See, e.!.,
Bamik
x2 (M.D.N.C.
Jul. 17, 201'4) (unpublished)
Consequently, Plaintiffs contention that the ALJ "elred in finding that fPlaintiff] began seeing
Andtew in June 2070" is without medt. pocket Etttty 70 at7 ;Tr. 20, 360, 423.)
1,4
u.
Dr
(mete memorialization
of a
clatrnant's subjective statements
elevate those statements to a medical opinion) (citation
in a medical report does not
omitted). The ALJ furthet explained
that Dr. ,\ndrew's opinions were inconsistent with the temaindet of the record, including the
opinions of Drs. Bissette and Warren. Qd. at20-21,.) Third, and last, the ALJ was well
^w^te
of Dr. Andrew's specialtzalúon as a psychiattist, and, in fact, refetted to Dt. Á.ndtew's as a
psychiatrist in his Decision. Qd. at
20.) Plaintiffs claim that the ALJ failed to meaningfully
consider the relevant regulatory factors is without metit.
C. The ^AIJ Propedy Accounted fot Dr. Warren's Opinion.
Last, Plaintiff contends that the
AIJ ered by failing to mention in the RFC or in a
hypothetical to the VE (1) an alleged need to "take breaks as needed to marø;ge his anxiety"
and Q) a moderate limitatiofl
"in his ability to sustain focused attention and concentration
sufficiently long to permit the timely and approptiate completion of tasks." pocket Entry 10
at11.)
These testtictions were found in Dt. ì(/arten's medical
opinion. Çr.372-73.)
The ALJ considered DDS consultant Warten's opinion, described it in gteat detail, and
then adopted it, as follows, except insofar as it concluded that Plaintiff could not maintain
employment:
During that March 201,'1, psychological consultative
examination, the claimant provided a lot of conflicting
information and his behavior was teportedly suggestive of
malingeting. Recotds note that his performance on the mental
status evaluation suggested impairment far mote signifìcant than
would be supported by observed and repotted abilities. Fot
example, the claimant stated that he could not temembet four
spoken wotds long enough to tepeat them immediately after
headng them. However, he could petfotm sedal 7's without
error. He was unable to recall four digits during Dgtt Span, but
then correctly tecalled five digi¡s. He reported his panic attacks
1,5
happen out of nowhete, but then stated that he is likely to have
panic attacks in ctowds. He often gave "near-miss" arìswers.
The examiner also found that thete wete marked inconsistencies
and discrepancies in the claimant's self-repott and the avallable
recotds. The examiner diagnosed the claimant with mood
disordet not otherwise specified Q.{OS); panic disorder with
agoraphobia; and rule out malingering. The claimant was
assigned a GAF of 55, which is indicative of an individual who
has moderate symptoms or difficulties in social, occupation, ot
school functioning. The examinet concluded that was no
evidence of significant impaiffient of the claimant's ability to
undetstand ot tespond to questions. His social intetaction was
polite and appropriate to the situation. It was felt that the
claimant would likely have some difficulty maintaining
consistent, full time employment due to his maladaptive pattern
of experiencing, intetpreting, and responding to his environment.
He had demonstrated, howevet, the ability to engage in complex
activities requiting attention, concentration, persistence, and
memoly such as putsing a protracted wotkplace discrimination
lawsuit against his former employer. He also teported no
difficulty doing things such as cooking ot keeping up on the latest
developments in the computet industry. He would likely have
no significant social interaction or multitasking and that afforded
him a flexible schedule so that he would be able to take breaks as
needed to manage his anxiety according to the techniques he
learned pteviously in psychothetapy.
The undersigned notes that the consulting physician, Dt.
John Waren, submitted a detailed report, which included
psychological testing, a clinical interview, and observations. The
undersigned finds that the examination was thorough and
genetally consistent with the evidence of record but finds that the
euidentv is not strong enough to sugest that maintaiaing cvnsistent
emplolment woald be too dfficult for the clairnant. The undersigned
finds that Dr. Warren's opinion is otherwise consistent v¡ith
simple, routine, low stress jobs with only occasional intetactions
with others as reflected in the residual functional capaciry
determination.
Qr. 21.-22 (emphasis added).) Then, in setting Plaintiffs RF'C, the -,{.LJ limited Plaintiff to
"simple, toutine, repetitive tasks
in a wotk
envitonment ftee
16
of fast paced ptoduction
requirements, involving only simple, work-related decisions with few,
if
any, work place
changes. Finally, he is limited to work requiring only occasional intetaction with the public
and co-wotkers with no tandem
tasks." (Tt.
19.)
The ÂLJ, as fact-finder, must formulate the RFC assessment. 20 C.F'.R.$ 404.1546(c);
Coluardu. Chater,59 F.3d 165 (4th Cir. 1995) (unpublished) ("The determination
of a claimant's
tesidual functioningcapacity lies with the ALJ, not a physician, and is based upon all relevant
evidence"). Consequently, a medical opinion, such as Dt. Warten's,
an ALJ as to a claimant's functional limitations
.
See
20 C.F.R.
SS
does not necessarily bind
404.1546(c), 404.1,527 (c)Q).
,{s explained in SSR 96-5p, an individual's RFC is not a "medical issue[] tegarding the natute
and sevetity of an individual's impairment(s) but [is an] administrative
1996 WL 3741,83,
úx2 QJuly 1996).
fìnding[]."
SSR
96-5p,
Upon careful teview, the undetsigned concludes that
the .,{.LJ gave sound reasorls rooted in the record fot par:úally discounting Dt. Warren's report.
[t.
21-22,355-74.)
Additional reasons support the ALJ's decision. First, Plaintiffs purported modetate
limitation to sustain focus and concentration to permit the timely completion of wotk-telated
tasks was conveyed
to the VE by the ALJ and included in Plaintiffs RF'C. In
het
hypothetical, the ALJ noted that due to Plaintiffs mental impaitments "limit[ing] his ability to
concentrate," the hypothetical individual was confined to simple, toutine, repetitive tasks to be
performed
in a "low stless envitonment with only
occasional change
in wotk
setting,
occasional decision making responsibilities, occasional judgment tequitement, no ptoduction
r^te or pace
work." Qr a9.)
In turn, limitations concetning Plaintiffs a[eged concenttation
17
and task completion issues were determined as findings of facts and addressed in the RFC
-
"The claimant is futhet limited to simple, routine, tepetitive tasks in a work envhonment free
of fast paced ptoduction tequkements, involving only simple, wotk-telated decisions with few,
if
any,work place changes. Finally, he is limited to work tequiting only occasional intetaction
with the public and co-workers with no tandem tasks." (Id. at 1.9).
Plaintiff cites roughly two dozen non-binding, unpublished
cases and contends that
these cases demonstrate that the ALJ erred here by not specifically mentioning "moderate"
limitations in Plaintiffls abiJity to focus and concentrate. (Docket Entty
1,0
at1,6.) Howevet,
many of these cases are fact:ually distinguishable ftom the case athand and, as a mote general
matter, the cases Plaintiff cites do not stand for the ptoposition that the specifìc limitations
ptesented to the VE and incorpotated
modetate limitations
law-including
case
in
in the RFC here can never
adequately account fot
concentration, persistence and pace. And,
in
fact, ample
case
law ftom ¡þi5 fos1-demonstrates the contrary.8
Second, the ALJ was
not obligated ¡6-2n61 cleatly did not-adopt Dt. Warren's
opinion that Plaintiff be limited to jobs that allow him to take undefìned bteaks as needed.
It
is within the ALJ's authority to reject this notion and formulate an RFC consistent with the
8
u.Astrue,No. 1:09CV246,2072WL1268475,at+7 (X4.D.N.C. Apr. 16, 2012) ([]he
resttiction to unskilled, simple, roudne, repetitive tasks and limited intetaction with othets adequately
accounted fot Plaintiff s intellectual defrcit and problems with concentration, petsistence, and pace, in
light of the evidence that Plaintiff can perform such two-hour blocks, as an eight-hour workday
typically.'); Parker u. Astrae,792 F. Sopp. 2d 886,895-96 (E.D.N.C. 2077) (reiecting attack on ALJ's
hypothetical ptemised on claim that "limitjng the [claimant] to 'simple, routine, and tepetitive tasks'
did not account for [the claimant's] bordedine intellectual functioning and moderate concentration
difhculties" where "state psychologist found that [the claimant] was only moderately limited in the
ability to maintain attention and concentration for extended pedods"); Adarns u. Astrae, No.
CV07-1248,2008 V/L2812835,at*4 (Xø.D. La.June 30,2008) (unpublished) ('A limitation to simple,
repedtive, routine tasks adequately captutes deficiencies in concenffation, persistence or pace ["f]
no more than moderate." (citing cases from three circuits)).
18
See, e.g., Hawle1t
substantial evidence set forth
in the recotd. Moteover, as Defendant coffectly points out,
PlaintifPs argument that the
A{
accepted this extreme functional limitation because she
summarized Dr.'Warren's report is mistaken. When the ÂLJ addtessed Dr.
'\ùØatten's
teport,
she noted his opinion that Plaintiff should have a flexible schedule, including bteaks "as
needed" to manage his alleged symptoms. Howevet, by teciting Dr. ïØatten's opinion as to
PlaintifPs limitations, the ALJ did not adopt it in full.
More specifìcally, the ALJ, when concluding that Dt.'Watten's fìndings wete "genetally
consistent with the evidence of record" and "the evidence is not strong enough to suggest that
maintaining consistent employment would be too diffìcult fot the claímant"
[r.22),
tejected
any finding by Dt. Waren that"mairtaining consistent employmentwould be too difficult
Plaintiff' Çr
22). Instead, the AtJ
fot
cleady set fotth the functional limitations that she did
accept and converted them into the RFC finding as descdbed above, including limiting
Plaintiff to the petformance of "simple, routine, low stress jobs with only occasional
intetactions with others"
[r.
22, 1,9). As Defendant petsuasively points out, because Dt.
'Warten's
suggestion that Plaintiff needed breaks on an "as needed" basis is consistent with Dt.
'Warren's
unduly restrictive finding that Plaintiff rrray lack the ability to maintain full-time
employment, the ALJ clearly rejected that finding
as a collective whole,
too.
Thus, when teading the ALJ's decision
Plaintiffs argument that the ALJ did anything other than teject
^n
"^s
needed" ability to take breaks is unpersuasive.
VI. CONCLUSION
Âfter a carefiil considetation of the evidence of recotd, the Coutt finds that the
19
Commissionet's decision
is suppoted by substantial evidence. Accotdingly, this Court
RECOMMENDS that Plaintiffs Motion forJudgment on the Pleadings (Docket Entry 9) be
DENIED, Defendant's Motion for Judgment on the Pleadings Q)ocket Ent"y 12) be
GRANTED and the final decision of the Commissioner be upheld.
e bstet
United States Magistrate Judge
Duham, Notth Catoltna
January 23,201.5
20
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