KLEBOE v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 3/3/2016, RECOMMENDS that Defendant's motion for judgment on the pleadings (Docket Entry 12 ) be GRANTED, Plaintiff's motion for judgment on the pleadings (Docket Entry 9 ) be DENIED, and that the final decision of the Commissioner be upheld. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JE,SSICA LAURA KLE,BOE,
Plaintiff,
v
CARYOLYN COLVIN,
Acting Commissionet of Social
Secudty,
Defendant.
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)
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1,:'1.4CY91,4
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Jessica L. I{eboe, seeks teview of a ftnal decision of the Commissioner
of
Social Security denying het claims for a period of disability and supplemental security income
benefits ("SSI"). The Court has before it the cenified administative recotd and cross-motions
fot judgment. (Docket Enuies 6, 9, 12.) For the reasons set forth below, the Court
recommends that Plaintiffs motion (Docket Entty 9) be denied, the Defendant's motion
(Docket E.rtty 12)be granted, and that the final decision of the Commissionet be upheld.
I.
PROCEDURAL HISTORY
Plaintiff applied fot SSI on October 24,2011,, alleging
24, 201,1,.
a
disability onset date of October
Çr. 1.63-69.¡t Het application was denied initially (Tt. 110-113)
teconsidetation
(It.
1,1,7-1,21,.) Thereafter,
Administrative Law Judge
and upon
Plaintiff requested ahearing de novo before an
("ALJ"). Çr. 20-21,.) Plaintiff, her attorney, and an imparlal
l Transcrþt citations refer to the administrative record which was filed with Defendant's Answer
pocket Entry
6.)
1.
vocâtional expert appeared at the headng on May 22,201,3. Çl41,-82.) A decisiori was issued
on July 1,9, 2013, upholding the denial of Plaintiffs application for SSI. Qr. 26-36.) On
Âugust 22, 201.4, the ,{ppeals Council denied Plaintiffs tequest fot teview of the decision,
thereby making the,A.LJ's determination the Defendant's fìnal decision for putposes of judicial
review. Qt.7-9.)
II.
STANDARD FOR REVIEW
Under 42 U.S.C. $ 405(9), the scope of judicial review of the Commissioner's final
decision is specific and narrow. Snitlt u. Schweiker,795tr.2d343,345 (4th Cir. 1986). This
Coutt's review of that decision is limited to determining whether there is substantial evidence
in the record to support the Commissioner's decision. 42 U.S.C. $ a05(g); Hønter
993 F.2d 31,34 (4th Cir. 1992)
404.1,51,7
(d)Q);
Hay
u. Sulliuan,
þer cutiam), søperseded in
nonreleuant
u. Salliuøn,
þart þt 20 C.F.R.
907 F.2d 1453, 1,456 (4th Cir. 1990). Substantial evidence is
"such relevant evidence as a reasonable mind might accept as adequate to support
conclusion
S
a
." Hunter, 993 F .2d at 34 (citng Nchardson u. Perales, 402 U .S. 389 , 401 (1,97 1)) . It
"consists of mote than a mete scintilla" "but may be somewhat less than a prepondetance."
1/. (quoting l-øws u. Celebreçe,368 F.2d 640, 642 (4th Cir. 1966)).
The Commissionet must make fìndings
of
fact and resolve conflicts in the evidence.
Ha1s,907 F.2d at 1,456 (citing King u. Calfano,599 tr.2d 597,599 (4th Cit. 1,979)). The
does not conduct a de novo review
of the evidence or the Commissionet's findings.
Cout
Schweiker,
795 F.2d àt 345. In reviewing for substantial evidence, the Coutt does not undertake to re-
weigh conflicting evidence, to make credibility determinations, or to substitute its iudgment
for that of the Commissioner. Craig u. Chøter,76 F.3d 585, 589 (4th Cit. 1996) (citing
2
Ha1s,
907 F.2d at 1,456). "ì(/here conflicting evidence allows reasonable minds
to diffet
as to
whether a clarmantis disabled, the responsibility for that decision falls on the [Commissioner]
(or the fCommissioner's] designate, the
ALJ)." Craig76tr.3d at 589 (quoting lValkeru. Bowen,
834F.2d635,640 (7thCit. 1987). Thedenialofbenefitswillbereversedonlyifnoteasonable
mind could accept the record as adequate to support the determination.
See
Nchardson,402
U.S. at 401. The issue befote the Coutt, therefote, is not whethet Plaintiff is disabled, but
whether the Commissionet's finding that Plaintiff is not disabled is suppotted by substantial
evidence and was reached based upon a coffect application of the televant Iaw.
u. Bowen,829
See
id.; Cofnan
F.2d 51.4,51.7 (4th Cir. 1987).
III. THE ALJ'S DISCUSSION
The Social Security Regulations define "disability" for the purpose of obtaining
disability benefits as the "inability
to do any
substantial gainful activity by teason
of
any
medically determinable physical or mental impairment2 which can be expected to result in
death ot which has lasted or can be expected to last fot a contirìuous period of not less than
12 months." 42 U.S.C. $ 1382c(a)(3xÐ. To meet this definition, a clatmant must have
severe impairment
which makes it impossible to do previous wotk
ot
a
any other substantial
gainful activity3 that exists in the nattonal economy. Id. $ 1382c(rX3XB)
A.
The Five-Step Sequential Analysis
The Commissionet follows a five-step sequential analysis to ascertain whethet the
2 A "physical or mental impairment" is an impairment resulting from "aîatornical, physiological, ot
psychological abnormalities which are demonsffable by medically acceptable clinical and laboratory
diagnostic techniques." 42 U .5.C. $ 1 382c(a) (3XD).
'
"substantial gainful activity" is work that (1) involves performing "significant and productive
physical or mental duties," and Q) "is done (ot intended) fotpay or
õ
J
profit."
20 C.F,R.
S 416.910.
claimant is disabled, which is set forth in 20 C.F.R.
Admin.,
17
S
416.920.
See
Albrìgþt u. Cornm'r of Soc.
Sec.
4 F.3d 473, 47 5 n.2 (4th Cn. 1,999). The ,A.LJ must determine in sequence:
(1)
Q)
(3)
IØhethet the claimant is engaged in substantial gainful ac:Jvity (i.e.,
whethet the claimant is wotking). If so, the claimant is not disabled
and the inquiry ends.
Whethet the claimant has a severe impairment. If not, then the
claimant is not disabled and the inquiry ends.
tX/hether the impairment meets or equals to medical ctitetia of 20
C.F'.R., Part 404, Subpart P, Appendix 1, which sets fotth a list of
impafuments that w^rcant a finding of disability without considering
vocational criteita. If so, the claimant zi disabled and the inquity is
halted.
(4)
(5)
Whether the impairment prevents the claimant from petfotming past
relevant work. If not, the claimant is not disabled and the inquiry is
halted.
\X/hether the claimant is able to perfotm any othet wotk considering
both his residual functional capacitya and his vocational abilities. If so,
the claimant is not disabled.
20 c.F.R. S 41,6.920.
In rendering his disability determination, the ALJ made the following fìndings latet
adopted by Defendant:
(1) The clumant has not engaged in substantial gainful activity since Octobet
CFR 416.971., et seq.).
(2) The claknant has the following sevete impafument bipolat disordet with
1,4,201,1, (20
psychotic featutes (20 CFR 416.920(c)).
(3) The claimant does not have an impaitment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1, Q0 CFR 416.920(d), 41.6.925 and
41,6.926).
a
"Residual functional capacíty" f'RFC'l is the most a claknant can do in a work setting despite the
physical and mental limitations of his impairment and any related symptom (e.9., pan). See 20 C.F.R.
$ a16.9a5(a) (1); see also Hine¡ u Bamhart,453 F.3d 559,562 (4th Cir. 2006). The RFC includes both a
"physical exertional or strength limitation" that assesses the claimant's "abiJity to do sedentary, light,
medium, hearJ, or vely hear,ry'work," as well as "nonexenional limitations (mental, sensory ot skin
impairments);' Hallu. Harris,658 F.2d 260,265 (4th Cir. 1981).
4
(4) After careful consideration of the entire record, the undetsigned finds that
the claimant has the residual functional capacity to perform the full range of
work at all exertional levels, but with the following non-exertional limitations:
she is capable of performing simple, routine, repetitive tasks, while maintaining
attention, concentration, persistence or pace to stay on tasks fot periods of 2
hours at ttme during a tt¡picaI S-hour workday, as tequired to petform such
^
tasks, in a low stress work setting, which is funher defined as no productionpace or quota-based wotk, rather she requires a goal-oriented job primarily
dealing with things as opposed to people, with no more than occasional changes
in the work setting; with no more than occasional interpetsonal interaction v/ith
supervisors andf or co-workets, but she must avoid ditect wotk with members
of the public as a component of the job, such as sales or negotiations, though
incidental or casual contact as it might arise duting the workday is not precluded;
she is limited to no more than occasional decision-making as a component of
the job; and she is testticted to jobs that carry a reasoning level of 1. or 2.
(5) The claimant is unable to petform any of het past relevant
wotk (20 CF'R
41,6.965).
Qr28-3a) (footnote omitted). Additionally, the ALJ found that Plaintiff, who
was 41 years
old at the time of her application, met the definition of a "younger individual aged 1.8-49."
Gr. 34.) The ALJ also noted that Plaintiff had a high school education and was able to
communicate in English, and that ttansferability of job skilis was not an issue in the case. (Tt.
34.) Based on these factors, Plaintiffs RFC, and the vocational expett's testimony, the
,A.LJ
concluded that "there are jobs that exist in significant numbers in the national economy that
fPlaintiffl can perform." (Tr. 35) (citing 20 C.F.R.
SS
416.969 and 416.969(a)). Accotdingly,
the ALJ decided that Plaintiff was not undet a "disability," as defined in the Social Security
Act (the "Act"), atàîy time between October14,201,1 þoth the application and alleged onset
date) and July 19, 20L3, the date of the decision.
5
(t
36.)
IV. ANALYSIS
Plaintiff contends that the Commissioner erred in determining that she was not
disabled for purposes of the
Act. Plaintiff
raises two issues: (1) the ALJ conducted a flawed
RFC assessment by giving less than conttolling weight to the opinion of Plaintiffs treating
psychiatrist, Dr. Clark; and Q)with reference to 20 C.F'.R. S 41,6.927(eX2XÐ (improperly cited
in Plaintiffls brief
as $ 404.1530), the
ALJ impropedy considered PlaintifÎs failute to take her
prescribed medications. (Docket Ent"y 10
at 1,1-1,6.) As explained below, this Coutt
concludes that the ALJ's decision to give less than contolling weight to
Dt. Clark's opinion
is
supported by substantial evidence and was reached based upon a coffect application of
relevant law, and the ,A.LJ was not improper
in considering Plainuffs failure to take her
presctibed medications.
1,. Dr. Clark's Opinion
Plaintiff states that, because "she is a specíalist and has personally examined fPlaintiffl
on many occasions since she began treating fPlaintiff] inJuly 201.2," Dr. Clatk's opinion should
be accotded controlling weight. (Id. at13.) The Commissioner typically affords greater weight
to the opinion of a claimant's treating medical sources because such sources are best able to
ptovide "a detailed, longitudinal picture" of
41,6.927 (c)(2); :ee ¿/r¿ SSR
96-2p,1996
^
claimant's alleged disability.
See
20 C.F.R. S
ffl. 37 4188 Çtly 2, 1,996) (if a tteating source's medical
opinion is "well-supported and not inconsistent with the other substantial evidence in the case
record,
it
must be given contolling weight").
controlling weight, however, when
A
treating physician's opinion is not due
"it is not supported by clinical evidence ot if it
is
inconsistent with other substantial evidence." CmigT 6F.3d at 590. An ALJ refusing to accord
6
controlling weight to the medical opinion
of a tr.ea:J;ng physician must consider
"fâctors" to determine how much weight to give
factors include: (i) the frequency
it.
20 C.F'.R. S
41,6.927
vadous
(c)(t)-(6). These
of examination and the length, nature and extent of
the
treatment relationship; (ü) the evidence in support of the treating physician's opinion; (üt) the
consistency
of the opinion with the recotd
as a whole; (iv) whethet the opinion is from a
specialist; and (v) other factors brought to the Social Security Administtation's attention that
tend to support or contradict the opinon. Id.
Significantly, as subsections (2) thtough (4) of the rule describe in gteat detail,
^
treattng
source's opinion, like all medical opinions, must be both well-supported by medical signs and
labotatory findings and consistent with the other substantial evidence in the c se tecotd. Id.
\ a1,6.927(c)Q)-Ø) "lI)f
a physician's
opinion is not supported by clinical evidence ot if it is
inconsistent with other substantial evidence,
Craig 76 F.3d at 590;
accord
it
should be accorded significantly less weight."
Mastro u. Apfe/270
F3d 111, 178 (4th Cit. 2001). Opinions by
physicians tegatding the ultimate issue of whethet a plaintiff is disabled within the meaning
of
the Act never receive controlling weight because the decision on that issue remains fot the
Commissioner alone. 20 C.F.R.
S
416.927(d).
Moreover, coutts have genetally found checklist opinions to be entitled to relatively
little weight.
See
MtGlothlen
u.
Astrae, No. 7:11-CV-148-RJ,2012WL3647411,at*6 (E.D.N.C.
Atg. 23, 2012) ("form reports are ar.guably entitled to üttle weight due to the lack of
explanation"); Halloran
u.
Bamhart,362F .3d 28,31.-32,31n.2 Qd Cß. 2004) (standatdized form
opinions are "only matginally useful" and not particulatly "infotmative"); Berrios luþt<.u.
of Health dy Human Seras., 951
F.2d
427
Sec'1
, 431, (lst Cir. 1991) (checklist opinions disfavoted);
7
Frelt u. Bowen,816
F. 2d 508, 515 (10th Cir. 1987) (checklist forms, "unaccompanied by
thorough written reports or persuasive testimony, ate not substantial evidence");
a/¡o 20
see
C.F.R. S 416.927 (c)(3) ("The more a medical source ptesents relevant evidence to support an
opinion . . . the more weight we will give that opinion. The better an explanation a source
provides for. an opinion, the mote weight we will give that opinion.").
Substantial evidence supports the ALJ's decision to accord
Dt. Clatk's opinion limited
weight. The ALJ noted that Dr. Clark's opinion was in the form of a checklist-style
questionnaire. (Tr. 33
)
The ALJ also found inconsistencies between Dr. Clark's checklist
form, her treatment notes, and Plaintiffs presentation ather hearing. The ALJ explained:
To begin with, there was no cleat evidence that Dr. Clark had four years of
expetience treating the claimant. As pteviously discussed, the claimant
requested the switch from Dr. Russell to Dr. Clark in October 201.2. Mote
significantly, howevet, the opinions of Dt. Clatk were inconsistent with the
treatment tecotd, including her own ptogress notes. These records confìtm
that the claimant was generally stable on medication, with intact memotry,
attention, concenttation, thought processes, speech, fund of knowledge, and
interact. Moreover, the claimant's ptesentation at the heating was not
consistent with the degree of resttiction averred by Dt. Clatk.
abil-ity to
(Id.) Indeed,
as noted by the ALJ,
Plaintiff, while "depressed"
^nd
Dr. Clatk's progress notes in May 2013 indtcate that
"anxious," was still stable; had normal tate, volume, and
articulation in her speech; had generally normal thought processes; was devoid of any violent
ideations; and exhibited fair judgment and
insight. Çr. 460-62.) Treatment notes prior to
l'/.ay 201,3 indicate good judgment and insight, euthymic and pleasant moods, exchange and
interaction with family members, participation in community activities, and an ability to travel.
Çr. 466-68, 469-70, 476-83,485, 489-90.)
Several
of
these individual capacities were
corroborated by PlaintifFs testimony duting the May 22, 201.3
8
AIJ heating. (Tt.
64-68)
(Plaintiff maintains communication with mother and college ftiend several times
a
week; walks
dog; visits church from time to time; goes grocery shopping; and cooks for herself.).
Other objective evidence in the tecord supported the ALJ's decision not to accotd Dt.
Clatk's opinion great weight. Dr. Russell, Plaintiffs treating physician prior to Dr. Clatk,
reported that ftom August to December 201,1, Plaintiff had generally normal, goal ditected
thoughts; good mood, affect, and judgment; was pleasant in mood and appearance; maintained
good attention and focus; and cognition was within normal limits. Çr.426-39.) State agency
consultants, aftet reviewing the record, opined that Plaintiff was capable of performing simple,
routine, repetitive tasks
in a low stress, non-ptoduction
demands. Gr. 83-108.) ,A.dditionally, Plaintiffs mother,
environment with limited social
in
October. 2011,, reported that
Plaintiff feeds and walks her dogs, bathes, fixes her own meals, shops for food, mows the lawn
as needed, does laundry, reads,
wtites, uses email, and actively makes phone calls.
(fr.
205.)
This Court tecognizes that the recotd is not entitely devoid of episodes of
decomposition-in May 201,2, for example, Plaintiff stopped het medications and was
subsequently btought in fot evaluation by a police officer who reported that Plainuff had been
at a restaurant for several days.
to het disability heating
Qr
pr.
494;542-556; 585-592.) Plainttff also reported stress prior
460); oversleeping and feeling sad after returning home from a
visit to het mothet in Chicago (Tr. 475); and a drop in mood and affect following the death
of her father ffr. 427-28). Howevet, each of these episodes is atuibutable to either a
signifìcant life event or momentary f.ailure to comply with her medicine tegiment. Otherwise,
the tecord fiom the televant time pedod demonsttates that Plaintiff was mentally functional,
sociable, and able to perform a wide range
of activities. Consequently, the Coutt finds the
9
ALJ's teatrnent of Dr. Clark's opinion complied with the applicable tegulations and was
supported by substantial evidence.
Likewise, for the reasons stated above, PlaintifPs argument that state agency physicians
were impropedy given gteatet weight than Plaintiffs tteating physician also fails. (Jee Docket
Entry
1,0
at 1,6.) State agency physicians âre "highly qualified . . . experts in Social Security
disability evaluation," 20 C.F.R. S 41,6.927 (.X2XÐ, and it is within the disuetion of the ALJ to
give gteater weight to a non-treating state agency physician, particulady when the opinion
of
the non-treating physician is supported by substantial evidence ot thete is petsuasive evidence
conttary to the opinion of a tteattne physician. Il/illiam¡
201,2
WL
5361,032, at *1.3 @,.D. Va.
Oct.
u.
Aslrwe,
No. 3:11-CV-764-HEH,
1,6, 201,2) report and recommendation adopted,
No.
3:1,1CY764-HEH, 201,2WL 536101,4 (E.D. Va. Oct. 31,,201,2) (fìnding that the ALJ did not
err in giving greater weight to opinions of non-tteating physicians when substantial evidence
in the tecotd supported the opinion s); Hanter,993 F.2d at 35 (finding that "the
A{
his discretion in giving fnon-treating physician's] testimony gteatet weight . . .
was
within
."). Here, Dt.
Cyt-McMillon and Dr. Grubbs'opinions, which opined claimant's functioning abilities, were
genetally consistent
with the entire medical record. Qr. 83-92; 103-06.) In making the
ultimate detetmination as to Plainuffs disability, the
A{
also considered the medical evidence
submitted after the opinions of the state agency physicians were rendered, thus taking into
account the entire medical record in his decision.
(r.
31,-34.) In light of substantial evidence
supporting the opinions of the state agency physicians, the ALJ did not ett in according great
weight to Dt. Cyt-McMillan and Dt. Grubbs'opinions. Thus, Plaintiffs argument fails.
10
2.
Failute to Take Prescribed Tteatment
Plaintiff also asserts that consideration of het imptoved state following compliance
with her presctibed medicine regiment is impropet. To the contrary, she argues that her
inconsistent compliance with said regimentis a symptom of het underþing disability. (Docket
Entry
sets
1.0 at1.5-1.6.)
To support her atgument, Plaintiff references 20 C.F.R.
forth the need to follow prescribed treatment.
See
20 C.F.R. $ 416.930;
S 416.930s
see
which
also SSR 82-59,
1,982WL31384 (1,982) ("An individualwho would otherwise be found to be under a disability,
but who fails without justifiable cause to follow treâtment . . . cannot by virtue of such 'failure'
be found to be under a disability.").
If
a claimant fails to follow â treâtment plan "without
a
good teason[,]" she will not be found disabled. 20 C.F.R. S 416.930. Howevet, this only
applies if.aclaimantwould otherwise be found disabled undet the
1,:1.2CY1,247,201,5
Act.
Smith u. Coluin,No.
WI- 350520L, at *5 n.7 (À4.D.N.C. June 3, 2015) (finding that SSR 82-59
only applies when the ALJ has detetmined an individual "would be found disabled under the
Act") (quotation and citation omitted). Here, the ALJ did not find Plaintiff disabled, not did
he deny benefits based on Plaintiffs failure to follow a ptescribed coutse of treatment. Thus,
the tegulation is inapplicable here. Hambl u. Coluin, No. 1:12-CV-00395-GCM, 2014 ìfL
1,874979, at
*6 CX/.D.N.C. May 9,201,4) (internal quotations and citations omitted) (finding
that SSR 82-59 only applies when plaintiffs failure to follow the ptescribed treatment is the
"tipping point between a finding of disabled verses a finding of not disabled").
s Ptaintiff inadvertently cites to 20 C.F.R. S 404,1530, which references prescribed treatment in
disability insutance benefits cases undet Title IL
1,1
V. CONCLUSION
Based on the fotegoing, the Court
RECOMMENDS that Defendant's motion fot
judgment on the pleadings pocket Errtry 1,2)be GRANTED, Plaintiffls motion for judgment
on the pleadings (Docket E.rtty 9) be DENIED, and that the final decision of
Commissioner be upheld.
L. ebster
J
United States Magistrate Judge
March 3,201,6
Durham, Notth Caroltna
1,2
the
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