LAWLESS v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/25/2017, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that this action be dismissed with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JEREMY JAMES LAWLESS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:16CV498
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Jeremy James Lawless, brought this action pursuant
to the Social Security Act (the “Act”) to obtain judicial review of
a final decision of Defendant, the Acting Commissioner of Social
Security,
denying Plaintiff’s
Income (“SSI”).
claim
(Docket Entry 1.)
for
Supplemental
Security
Defendant has filed the
certified administrative record (Docket Entry 8 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 12; see also Docket Entry 11 (Plaintiff’s Memorandum);
Docket Entry 13 (Defendant’s Memorandum)).
For the reasons that
follow, the Court should enter judgment for Defendant.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Plaintiff applied for SSI. (Tr. 190-98.) Upon denial of that
application initially (Tr. 84-95, 114-22) and on reconsideration
(Tr. 96-110, 126-35), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 136-38).
Plaintiff, his
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 33-72.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 16-28.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-5,
14-15, 276-79), thereby 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] has not engaged in substantial gainful
activity since November 8, 2012, the application date.
2.
[Plaintiff] has the following severe impairments:
bipolar disorder; panic disorder; borderline personality
disorder; headaches; hypertension.
. . .
3.
[Plaintiff] does not have an impairment 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.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except [he] is only
capable of occasionally climbing ropes, ladders, and
scaffolds; working on simple, routine tasks involving no
more than simple, short instructions and simple workrelated decisions with few work place changes; occasional
2
contact with supervisors and coworkers; but no work at a
fixed production rate of pace; he can work in proximity
with others but not in coordination with others; no
public contact.
. . .
5.
[Plaintiff] is unable to perform any past relevant
work.
. . .
9.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [he] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [] Act, since November 8, 2012, the date
the application was filed.
(Tr.
21-28
(bold
font
and
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).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
3
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 if they are
supported
by
substantial
evidence
and
were
reached
through
application of the correct legal 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, 401 (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) (brackets and internal
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 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
4
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the 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 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
2
regulations
establish
a
The Act “comprises two disability benefits programs. The Disability Insurance
Benefits Program 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
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
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
‘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. Commissioner 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,
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).
6
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See 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
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
“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
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) the ALJ “erred in finding that [Plaintiff’s] mental
impairments d[id] not meet or medically equal Listings 12.04,
12.06, and 12.08” (Docket Entry 11 at 8 (capital letters omitted));
and
(2) the ALJ “erred in failing to accord appropriate weight to
the opinion evidence in the record, including the opinion of
[Plaintiff’s] treating psychiatrist and the GAF scores throughout
the record” (id. at 12 (capital letters omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 13 at 3-20.)
1. Listings 12.04, 12.06, and 12.08
In Plaintiff’s first assignment of error, he contends that the
ALJ “erred in finding that [Plaintiff’s] mental impairments d[id]
not meet or medically equal Listings 12.04, 12.06, and 12.08.”
(Docket
Entry
specifically,
11
at
8
Plaintiff
(capital
maintains
letters
that
his
omitted).)
bipolar
More
disorder,
evidencing both depressive and manic symptoms[,] . . . should
result
in
[P]laintiff
meeting
and/or
equaling
the
functional
equivalent of the paragraph A criteria of Listing 12.04 [Affective
Disorders].”
(Id. at
9 (citing Tr. 286-88, 304-07, 310, 312-13,
8
327, 350, 356-57).)
Disorders),
With regard to Listing 12.06 (Anxiety-Related
Plaintiff
contends
that
his
“panic
disorder
with
agoraphobia . . . should result in [P]laintiff meeting and/or
equaling the functional equivalent of the paragraph A criteria of
Listing 12.06.”
(Id. at 10 (citing Tr. 290-94, 296-97, 304-07,
310, 312-13, 327, 350).)
Plaintiff further maintains that his
“borderline personality disorder . . . should result in [P]laintiff
meeting and/or equaling the functional equivalent of the paragraph
A criteria of Listing 12.08 [Personality Disorders].” (Id. (citing
Tr. 304, 310, 312, 313, 327).) Moreover, Plaintiff argues that his
testimony and treating psychiatrist’s opinion establish that he
suffers
from
“marked
restriction
in
activities
of
daily
living, extreme difficulty maintaining social functioning, and
deficiencies in concentration, persistence, or pace” which “should
result
in
[P]laintiff
meeting
and/or
equaling
the
functional
equivalent of [the paragraph B criteria of] Listings 12.04, 12.06,
and 12.08.”
353).)
(Id. at 11 (citing Tr. 44, 48-49, 51, 56, 61, 351,
Plaintiff’s arguments fall short.
“Under Step 3, the [Social Security Administration’s SEP]
regulation states that a claimant will be found disabled if he or
she has an impairment that ‘meets or equals one of [the] listings
in appendix 1 of [20 C.F.R. Pt. 404, Subpt. P] and meets the
duration requirement.’”
Radford v. Colvin, 734 F.3d 288, 293 (4th
Cir. 2013) (quoting 20 C.F.R. § 404.1520(a)(4)(iii)) (internal
9
bracketed numbers omitted).
“The listings set out at 20 CFR pt.
404, subpt. P, App. 1, are descriptions of various physical and
mental illnesses and abnormalities, most of which are categorized
by the body system they affect.
Each impairment is defined in
terms of several specific medical signs, symptoms, or laboratory
test results.”
Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990)
(internal footnote and parentheticals omitted).
“In order to
satisfy a listing and qualify for benefits, a person must meet all
of the medical criteria in a particular listing.”
Bennett, 917
F.2d at 160 (citing Zebley, 493 U.S. at 530, and 20 C.F.R.
§ 404.1526(a)); see also Zebley, 493 U.S. at 530 (“An impairment
that manifests only some of those criteria [in a listing], no
matter how severely, does not qualify.”).
To meet Listings 12.04
and 12.06, Plaintiff’s mental impairments must satisfy either the
criteria in paragraphs A and B, or the criteria in paragraph C, see
20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.04, 12.06, and to meet
Listing 12.08, Plaintiff must demonstrate that his personality
disorder meets all of the requirements of paragraphs A and B of
that listing, see 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.08.6
6
The ALJ did not analyze whether Plaintiff’s borderline personality disorder met
or equaled Listing 12.08 but rather addressed Plaintiff’s mental impairments
under Listings 12.03 (Schizophrenic, Paranoid and Other Psychotic Disorders),
12.04, and 12.06. (See Tr. 21-22.) Plaintiff does not specifically assign error
to the ALJ’s decision to address Listing 12.03 rather than Listing 12.08, but
instead argues that his personality disorder met and/or functionally equaled that
Listing.
(See Docket Entry 11 at 10.)
In any event, the ALJ’s failure to
address Listing 12.08, if error at all, amounts to harmless error, because
Listings 12.03 and 12.08 contain the same paragraph B criteria.
Compare 20
C.F.R., Pt. 404, Subpt. P, App’x 1, § 12.03B, with id. § 12.08B. Moreover, the
(continued...)
10
Pursuant to Listings 12.04B, 12.06B, and 12.08B, Plaintiff
must show that his mental impairments:
B. Result[] in at least two of the following:
1.
Marked restriction of activities of daily
living; or
2.
Marked difficulties in maintaining social
functioning; or
3.
Marked
difficulties
in
maintaining
concentration, persistence, or pace; or
4.
Repeated episodes of decompensation, each
of extended duration[.]
20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.04B, 12.06B, 12.08B
(emphasis added).
limitation
function
sustained
must
In this context, to qualify as “marked,” a
“interfere
independently,
basis.”
20
seriously
with
appropriately,
C.F.R.
Pt.
[one’s]
effectively,
404,
Subpt.
P,
ability
and
on
App’x
to
a
1,
§ 12.00(C); see also 20 C.F.R. § 416.920a(c)(4) (explaining that
“marked”
represents
the
fourth-highest
of
five
levels,
below
“extreme,” but above “none, mild, [and] moderate”).
a. Activities of Daily Living
The ALJ cited specific record evidence to support her finding
of mild limitation in activities of daily living:
6
(...continued)
ALJ here apparently assumed, without explicitly finding, that Plaintiff’s mental
impairments satisfied the criteria of the “A paragraphs” of Listings 12.04 and
12.06. (See Tr. 21-22.) Further, Plaintiff does not challenge the ALJ’s finding
that Plaintiff’s mental symptoms do not meet the criteria in the “C paragraphs”
of Listings 12.04 and 12.06. (See Docket Entry 11 at 8-11; see also Tr. 22.)
Accordingly, the relevant inquiry focuses on whether substantial evidence
supports the ALJ’s findings with respect to the “B paragraphs.”
11
In activities of daily living, [Plaintiff] has mild
restriction. [Plaintiff] only has a mild restriction
exhibited by his ability to perform domestic chores such
as taking care of his children, cleaning, cooking, and
getting his children prepared for school. [(Tr. 313.)]
[Plaintiff’s] fiancé also reported that [Plaintiff] helps
feed and walk their dogs. [(Tr. 233.)]
(Tr. 22.)
Notably, Plaintiff does not dispute the accuracy of the
evidence upon which the ALJ relied in finding mild limitation in
activities of daily living.
(See Docket Entry 11 at 11.) Instead,
Plaintiff points to other record evidence (not expressly cited by
the ALJ in connection with the step three analysis) as proof of a
marked
limitation
in
this
area.
(Id.)
More
specifically,
Plaintiff points to (1) his “testi[mony] that he is often too
depressed or fatigued to complete tasks around the house and that
there are plates and trash piling up around his side of the bed
that he’s been too depressed to even touch” (id. (citing Tr. 51,
56, 61)); and (2) treating psychiatrist Dr. Connie Calvert’s
opinion
that
Plaintiff
suffered
from
marked
restriction
in
activities of daily living (id. (citing Tr. 351)).
Although the evidence Plaintiff cites arguably could have
supported a finding of marked limitation in activities of daily
living, none of that evidence compelled such a finding. First, the
ALJ considered Plaintiff’s hearing testimony and statements in
medical records in a fair amount of detail (see Tr. 23-24), but
ultimately
found
that
Plaintiff’s
12
“statements
concerning
the
intensity, persistence and limiting effects of [his] symptoms
[we]re not entirely credible,” noting that “many of [Plaintiff’s]
symptoms are well-controlled with medications” and that Plaintiff
“ha[d] developed
methods
of
dealing
with
his
anger,
such
as
breathing, counting to 10, walking away, and avoiding stress” (Tr.
24).
Plaintiff does not contest the ALJ’s evaluation of his
subjective statements (see Docket Entry 11), and the ALJ cited to
substantial evidence to support her conclusions thereon.
Second, the ALJ discussed Dr. Calvert’s opinions in a Medical
[S]tatement
[C]onditions
[C]oncerning
for
Social
[B]ipolar
Security
[D]isorder
[D]isability
and
[R]elated
[C]laim
dated
December 30, 2014 (“MSS”) (albeit not specifically Dr. Calvert’s
opinion
concerning
Plaintiff’s
ability
to
engage
in
daily
activities) (see Tr. 25; see also Tr. 350-53), but accorded those
opinions “little weight” as “inconsistent with the medical record,
opinions from the other medical sources, and her own notes” (Tr.
25).
For the reasons discussed in connection with Plaintiff’s
second issue on review, the ALJ supported her decision to accord
little weight to Dr. Calvert’s opinions with substantial evidence.
Accordingly, as the ALJ supported the mild limitation in
activities of daily living with substantial evidence, Plaintiff did
not contest the accuracy of the evidence upon which the ALJ relied,
and Plaintiff did not describe any evidence that compelled the ALJ
13
to find a marked limitation, Plaintiff has not shown entitlement to
relief on this front.
b. Social Functioning
The ALJ provided the following supporting analysis for her
finding of moderate limitation in social functioning:
In
social
functioning,
[Plaintiff]
has
moderate
difficulties. [Plaintiff’s] moderate restriction stems
from the anxiety he feels around groups, for example
[(Tr. 304)]. However, this is not more than a moderate
restriction, as [Plaintiff] has shown that he can go to
crowded events, like his daughter’s open house, without
needing
to
leave.
[(Tr.
305.)]
Additionally,
[Plaintiff’s] fiancé reported that [Plaintiff] only talks
with others on the computer; otherwise, he spends his
time with his fiancé and their children. [(Tr. 236.)]
(Tr. 22.)
Plaintiff does not contest the ALJ’s reliance on the abovedescribed evidence, but describes other evidence, not cited by the
ALJ in the B paragraph analysis, that he claims supports a marked
limitation in social functioning: (1) his “testi[mony] that his
social anxiety has increased in the past couple of years, that he
can
barely
get
through
occasional
school
functions
for
his
children, that his wife does the shopping because he cannot handle
being in the store, and that he cannot control anger outbursts that
he has when he is around others” (Docket Entry 11 at 11 (citing Tr.
44, 48-49)); and (2) Dr. Calvert’s opinion that Plaintiff’s mental
impairments cause extreme difficulty maintaining social functioning
(id. (citing Tr. 351)).
14
As discussed in the preceding subsection, the ALJ considered
Plaintiff’s testimony and other statements about his social anxiety
(see Tr. 23-24), but ultimately concluded that “[t]he allegations
[Plaintiff] made when describing his symptoms [we]re not fully
credible” (Tr. 24). Further, the ALJ addressed the opinions of Dr.
Calvert (although not specifically Dr. Calvert’s opinion regarding
Plaintiff’s social functioning ability) (see Tr. 25-26) and, as
discussed in the context of Plaintiff’s second issue on review, the
ALJ supported with substantial evidence her decision to discount
those opinions (see Tr. 25).
Thus, because the ALJ supported the moderate limitation in
social functioning with substantial evidence, and Plaintiff neither
contested that reasoning nor proffered evidence that required the
ALJ to adopt a marked limitation, Plaintiff’s attack on the ALJ’s
social functioning finding fails.7
In conclusion, Plaintiff’s first assignment of error fails to
warrant relief.
7
Plaintiff did not expressly assign error to the ALJ’s findings that Plaintiff’s
mental impairments caused moderate limitation in concentration, persistence, or
pace (“CPP”), and no episodes of decompensation. (See Docket Entry 11; see also
Tr. 22.)
Moreover, although Plaintiff mentioned Dr. Calvert’s finding that
Plaintiff experienced deficiencies in CPP (see Docket Entry 11 at 11; see also
Tr. 351 (reflecting Dr. Calvert’s encircling of the word “Present” with regard
to deficiencies in CPP that result in “frequent failure to complete tasks in a
timely manner”)), Plaintiff made no attempt to show that the ALJ’s finding of
moderate limitation in CPP insufficiently encompassed Dr. Calvert’s CPP opinion
(see Docket Entry 11).
15
2. Opinion Evidence
In Plaintiff’s second and final issue on review, he challenges
the ALJ’s evaluation of Dr. Calvert’s opinions on the MSS and her
Global Assessment of Functioning (“GAF”) scores for Plaintiff.
(See Docket Entry 11 at 12-15.)8
Plaintiff
maintains
that,
Regarding Dr. Calvert’s MSS,
“[a]s
[P]laintiff’s
treating
psychiatrist, Dr. Calvert is in the best position to determine how
[P]laintiff’s impairments affect his ability to work and her
opinion should have been given the proper weight.”
11 at 14.)
(Docket Entry
Plaintiff further asserts that the ALJ “erred in
failing to adequately address the significance of [P]laintiff’s
[GAF] scores throughout the record” (id. at 14), most of which
reflected either “impairment in reality testing or major impairment
in several areas” or “serious symptoms” (id. at 15).
According to
Plaintiff, the ALJ “did not provide a sufficient explanation of her
reasons for rejecting the GAF scores in the record.”
(Id.)
Plaintiff’s arguments fail as a matter of law.
a.
Treating Psychiatrist’s Opinion
Plaintiff first maintains that the ALJ erred by failing to
accord the “proper weight” to Dr. Calvert’s opinions on the MSS.
8
The GAF is a numeric scale from 0 to 100 representing a clinician’s judgment
of an individual’s social, occupational and school functioning “on a hypothetical
continuum of mental health-illness.” American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. text revision 2000). A new
edition of the leading treatise discontinued use of the GAF.
See American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 16 (5th
ed. 2013).
16
(Id. at 14.)
The treating source rule 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.
C.F.R. §
416.927(c)(2)
detailed,
(“[T]reating
longitudinal
picture
of
sources
[a
.
.
.
provide
claimant’s]
20
a
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 as
consultative examinations or brief hospitalizations.”).
The rule
also recognizes, however, that not all treating sources or treating
source opinions merit the same deference.
For
example,
the
nature
and
extent
of
each
treatment
relationship may appreciably temper the weight an ALJ affords an
opinion. 20 C.F.R. § 416.927(c)(2) (ii). 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. § 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).
Dr. Calvert opined on the MSS that Plaintiff had moderate
impairment in his “ability to carry out very short and simple
17
instructions” (Tr. 351), “to make simple work-related decisions,”
“to ask simple questions or request assistance,” and “to be aware
of normal hazards and take appropriate precautions” (Tr. 352). Dr.
Calvert assessed marked impairment of Plaintiff’s “ability to
remember locations and work-like procedures,” “to understand and
remember short and simple instructions,” “to carry out detailed
instructions” (Tr. 351), “to travel in unfamiliar places or use
public transportation,” and “to set realistic goals or make plans
independently of others” (Tr. 352).
Finally, Dr. Calvert rated as
extremely impaired Plaintiff’s “ability to understand and remember
detailed instructions,” “to maintain attention and concentration
for extended periods,” “to perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances,”
“to
sustain
an
ordinary
routine
without
special
supervision” (Tr. 351), “to work in coordination and proximity with
others without being distracted by them,” “to complete a normal
workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods,” “to interact
appropriately with the general public,” “to accept instructions and
respond appropriately to criticism from supervisors,” “to get along
with coworkers or peers without distracting them or exhibiting
behavioral extremes,” “to maintain socially appropriate behavior
and to adhere to basic standards of neatness and cleanliness,” as
18
well as “to respond appropriately to changes in the work setting”
(Tr. 352).
Here, the ALJ’s evaluation of Dr. Calvert’s opinion complied
with the regulatory requirements.
The ALJ discussed Dr. Calvert’s
opinions on the MSS (see Tr. 25), but accorded those opinions
“little weight” for several reasons:
Dr. Calvert’s opinion is given little weight because it
is inconsistent with the medical record, opinions from
the other medical sources, and her own notes. In her
earlier records Dr. Calvert’s earlier reports that
[Plaintiff] was doing well and had normal judgment,
attention span, and concentration differs greatly from
her opinion, for example, [(Tr. 327)]. In his meetings
with Dr. Calvert, [Plaintiff] repeatedly reports
experiencing situational stressors affecting his mood
that would upset or cause sadness in anyone, regardless
of mental impairment.
Additionally, Dr. Calvert’s
opinion is given little weight because it does not
account for [Plaintiff’s] medication managing his
symptoms. [Plaintiff’s] wife noted that he was calmer and
less irritable while on his medication. While off his
medication, [Plaintiff] realized how effective the
medication was at preventing the mood swings he currently
experienced while off the medication.
While Dr.
Calvert’s opinion deserves some weight due to her being
[Plaintiff’s] treating physician, she only receives
little weight because her opinion is inconsistent with
the medical record and fails to account for the
beneficial effects of [Plaintiff’s] medication.
(Tr. 25-26 (internal citations omitted) (emphasis added).)
As an initial matter, in attacking the ALJ’s decision to
accord “little weight” to Dr. Calvert’s opinions, Plaintiff does
not address the ALJ’s rationales, which find support in the record
(see Tr. 84-94, 96-109, 290-96, 304-13, 327), that Dr. Calvert’s
opinions (1) are “inconsistent with the medical record” (Tr. 25)
19
(2) are “inconsistent with . . . her own notes” (id.); and (3) did
“not account for [Plaintiff’s] medication managing his symptoms”
(Tr. 26).
(See Docket Entry 11 at 12-15.)
Rather, Plaintiff
focuses on the ALJ’s finding that Dr. Calvert’s opinions did not
harmonize with “opinions from the other medical sources” (Tr. 25),
arguing that “the only relevant opinion would be that of [state
agency
psychological
consultant]
Dr.
Jonathan
Mayhew,
a
non-
examining physician who rendered his opinion . . . without benefit
of the full record.”
(Docket Entry 11 at 13.)
Plaintiff’s argument misses the mark.
Although the ALJ did
not explicitly discuss the state agency psychological consultant’s
findings at the initial level of review (see Tr. 24-25), that
consultant,
Dr.
Nancy
Y.
Herrera,
offered
opinions
as
to
Plaintiff’s mental RFC nearly identical to those of Dr. Mayhew.
(Compare Tr. 91-2, with Tr. 105-07.)
Notably, both consultants
opined that Plaintiff retained the ability to “maintain attention
and concentration up to 2 hours at a time as required for the
performance of simple tasks . . . in settings with minimal social
demands . . . [and] within the context of a stable, low-stress work
assignment.”
(Tr. 92, 105, 107.)
The consultants’ opinions thus
offer restrictions much less extreme than Dr. Calvert’s.
Tr.
92,
105,
107,
with,
Tr.
351-52.)
Consistent
(Compare
with
the
consultants’ opinions, the ALJ adopted a mental RFC which included
restrictions to “simple, routine tasks involving no more than
20
simple, short instructions and simple work-related decisions with
few work place changes; occasional contact with supervisors and
coworkers; but no work at a fixed production rate or pace; . . .
work in proximity to others but not in coordination with others;
[and] no public contact.”
(Tr. 23.)
Moreover, ALJs can permissibly credit the opinions of nonexamining physicians, who render their opinions without the benefit
of a full record, over those of a treating physician, where the
non-examining physicians’s opinions remain consistent with the
evidence received subsequent to their opinions.
See Lapeer v.
Astrue, No. 5:08-CV-256-D(1), 2009 WL 2487038, at *7 (E.D.N.C. Aug.
13,
2009)
(unpublished)
(noting
that,
“under
appropriate
circumstances, where the opinion of the treating source is not
given controlling weight, a nonexamining source opinion may be
accorded substantial weight and even more weight than a treating
source opinion” (citing 20 C.F.R. § 416.927(d), and Social Security
Ruling 96–6p, Policy Interpretation Ruling Titles II and XVI:
Consideration of Administrative Findings of Fact by State Agency
Medical and Psychological Consultants and Other Program Physicians
and Psychologists at the Administrative Law Judge and Appeals
Council Levels of Administrative Review; Medical Equivalence, 1996
WL 374180, at *3 (July 2, 1996))).
Here, the ALJ expressly stated
that she gave the consultants’ opinions “great weight” in part
because she found their opinions “consistent with the treatment
21
record.”
(Tr. 25.)
That explanation suffices.
See Dear v.
Astrue, No. 4:10-CV-95-D, 2011 WL 4381742, at *5 (E.D.N.C. Sept.
20, 2011) (unpublished) (holding that “ALJ lawfully gave the
opinions [of non-examining state agency consultants] greater weight
[than the opinion of a treating source] because, as the ALJ found
after summarizing these opinions, they “are consistent with the
longitudinal medical record”).
In sum, the ALJ here explained her decision to give Dr.
Calvert’s opinions little weight, and supported that explanation
with substantial evidence.
b.
GAF Scores
Plaintiff further argues that the ALJ “erred in failing to
adequately address the significance of [P]laintiff’s [GAF] scores
throughout the record,” most of which reflected either “impairment
in
reality
testing
“serious symptoms.”
or
major
impairment in several
(Docket Entry 11 at 15.)
areas”
or
In particular,
Plaintiff faults the ALJ’s evaluation of the GAF scores on three
bases: (1) Plaintiff received multiple GAF scores in the 40 to 50
range between September 2012 and December 2014, such that the
scores
do
not
represent
a
mere
“snapshot”
of
Plaintiff’s
functioning; (2) the ALJ misstated the moderate range of GAF scores
as “50 or higher” (Tr. 26) and overstated the number of GAF scores
in the moderate range; and (3) the ALJ inaccurately stated that
Plaintiff’s lower GAF scores correlate with periods of medication
22
noncompliance.
(See Docket Entry 11 at 14-15.)
None of those
grounds provides a basis for remand or reversal.
Effective July 22, 2013, the Social Security Administration
clarified its position on the relevance of GAF scores as follows:
[W]hen it comes from an acceptable medical source, a GAF
rating is a medical opinion . . . . An [ALJ] considers
a GAF score with all of the relevant evidence in the case
file and weighs a GAF rating as required by [20 C.F.R. §
416.927(c)] . . . . [A] GAF needs supporting evidence to
be given much weight. By itself, the GAF cannot be used
to ‘raise’ or ‘lower’ someone’s level of function. The
GAF is only a snapshot opinion about the level of
functioning. It is one opinion that we consider with all
the evidence about a person’s functioning. Unless the
clinician clearly explains the reasons behind his or her
GAF rating, and the period to which the rating applies,
it does not provide a reliable longitudinal picture of
the claimant’s mental functioning for a disability
analysis.
Administrative Message 13066, Global Assessment of Functioning
(GAF) Evidence in Disability Adjudication (“AM–13066”).
Consistent with the foregoing policy, the ALJ explicitly
discussed and assigned weight to the GAF scores of record:
[Plaintiff] has had a number of [GAF] scores taken
between 2012 and 2014.
GAF scores rate the social,
occupational, and psychological functioning of adults on
a 0 to 100 scale.
A score of 31-40 indicates some
impairment in reality testing or communication or major
impairment in several areas, 41-50 indicates serious
symptoms, and 51-60 indicates only moderate symptoms.
The record indicates that [Plaintiff] has had 11 GAF
scores taken between September 4, 2012, and December 30,
2014, with scores ranging from 40 to 55. These scores
are given little weight because, according to the
Diagnostic and Statistical Manual of Mental Disorders,
4th ed. (DSM-IV), they only represent a “snapshot”
judgment of [Plaintiff’s] level of symptoms on the day of
examination. Moreover, according to the DSM-IV, absent
an independent explanation from the assessing examiner,
23
GAF scores should be interpreted as representing the
lower of [Plaintiff’s] symptoms or level of functioning.
This
dichotomy
recognizes
that
some
symptomatic
individuals may nevertheless be high functioning.
Finally, [Plaintiff] has had a number of GAF scores that
are 50 or higher, indicating that with proper medication
he
can
function
with
only
moderate
symptoms.
[Plaintiff’s] high level of functioning is exhibited by
his relationship with his daughters; for example,
[Plaintiff] goes to their open house meetings, takes them
to the pool, and brings them to the fair as well as
acting as their primary caretaker on a daily basis.
Additionally, [Plaintiff’s] lower GAF scores correspond
to times when [Plaintiff] was not compliant with his
medications.
(Tr. 26 (internal citation omitted) (emphasis added).)
First, regardless of the quantity of GAF scores Plaintiff has
received, a GAF score still reflects only “a snapshot of a person’s
functioning
at
a
particular
point
in
time,
and
longitudinal indicator of the person’s functioning.”
is
not
a
Riddick v.
Colvin, No. 2:12-cv-34, 2013 WL 1192960, at *5 (E.D. Va. Feb. 28,
2013) (unpublished) (emphasis added).
Second, the ALJ did not overstate the number of moderate GAF
scores Plaintiff received.
The ALJ first expressly stated that
Plaintiff “has had 11 GAF scores taken between September 4, 2012,
and December 30, 2014, with scores ranging from 40 to 55,” and then
noted that Plaintiff “has had a number of GAF scores that are 50 or
higher.”
(Tr. 26 (emphasis added).) Given that the ALJ expressly
quantified the total number of GAF scores in the record, the ALJ
24
clearly knew how many of those scores qualified as 50 or higher.9
The record reflects that three of the 11 GAF scores ranked in the
51 to 60 range (see Tr. 296, 306, 307), and Plaintiff has not shown
why the ALJ’s reference to a “number” of moderate GAF scores
“overstates” that three out of eleven of such scores fell in the
moderate range.
Finally,
Plaintiff
faults
the
ALJ
for
concluding
that
Plaintiff’s lowest GAF scores coincide with periods of medication
noncompliance (see Tr. 26), noting that “[t]he ALJ supported th[at]
conclusory statement with just a single score that was assessed
during
a
period
when
[P]laintiff
was
unable
to
afford
his
medication and did not take it for a few days” (Docket Entry 11 at
15 (citing Tr. 312)).
Even if the ALJ erred in that regard,
Plaintiff has failed to show prejudice.
As quoted above, the ALJ gave another reason for discounting
the GAF scores (see Tr. 26 (noting that, “absent an independent
explanation from the assessing examiner, GAF scores should be
interpreted as representing the lower of [Plaintiff’s] symptoms or
level of functioning” as well as that Plaintiff’s “high level of
functioning is exhibited by his relationship with his daughters;
9
The ALJ mistakenly expressed the moderate range of GAF scores as “50 or
higher.” (Tr. 26.) The DSM-IV categorizes moderate symptoms with GAF scores
from 51 to 60. See DSM-IV at 34. That error, however, qualifies as harmless
under the circumstances, as Plaintiff received only one GAF score of 50 (see Tr.
305) and thus, the ALJ, at most, misconstrued one GAF score as being in the
moderate range as opposed to the highest functioning end of the serious range.
25
for example, [Plaintiff] goes to their open house meetings, takes
them to the pool, and brings them to the fair as well as acting as
their primary caretaker on a daily basis”), and Plaintiff has not
specifically attacked that reason (see Docket Entry 11 at 12-15).10
In short, Plaintiff’s claim that the ALJ improperly evaluated
Dr. Calvert’s opinions and GAF scores fails as a matter of law.
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
remand.
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
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 12)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 25, 2017
10
Additionally, because the GAF scores reflect Dr. Calvert’s opinions, the ALJ’s
discounting of Dr. Calvert’s opinions (which, as discussed above, the ALJ did
appropriately) also precludes a finding of prejudice.
26
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