CHAMBERS, JR. v. COLVIN
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION, signed by MAG/JUDGE L. PATRICK AULD on 2/21/2017.RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that this action be dismissed with prejudice. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ELBERT LEON CHAMBERS, JR.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
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1:16CV810
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Elbert Leon Chambers, Jr., 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
Security Income (“SSI”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Supplemental
Defendant has filed
the certified administrative record (Docket Entry 9 (cited herein
as “Tr. __”)), and both parties have moved for judgment (Docket
Entries 11, 13; see also Docket Entry 12 (Plaintiff’s Memorandum);
Docket Entry 14 (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. 80-99, 118-22) and on reconsideration
(Tr. 100-17, 130-34), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 135-37).
Plaintiff, his
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 55-69.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 9-24.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
7-8, 285-93), 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 September 30, 2013, the application date.
2.
[Plaintiff] has the following severe impairments:
diabetes mellitus, human immunodeficiency virus (HIV),
chronic obstructive pulmonary disorder (COPD), asthma,
depression, degenerative disc disease, osteoarthritis,
anxiety, diabetic neuropathy, lumbar radiculopathy, and
polysubstance abuse.
. . .
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 light work . . . except that
[Plaintiff]: can frequently, but not continuously,
2
perform all postural activities; must avoid ladders,
ropes, scaffolds, unprotected heights, and machinery with
dangerous parts; needs an assistive device to ambulate;
can follow short, simple instructions and perform routine
tasks, but cannot perform work requiring a production
rate or demand pace; is able to sustain attention and
concentration for two hours at a time; can frequently,
but not continuously, have contact or interactions with
the public; must avoid concentrated exposure to
respiratory irritants; should avoid work environments
dealing with crisis situations, complex decision making,
or constant changes in a routine setting.
. . .
5.
[Plaintiff] has no 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 [Plaintiff] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [] Act, since September 30, 2013, the date
the application was filed.
(Tr.
14-24
(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).
3
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
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
4
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
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,
2
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
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
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
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
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
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
(continued...)
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 failing to accord appropriate weight to
the
opinion
evidence
of
record”
(Docket
Entry
12
at
6
(capitalization omitted)); and
(2) the ALJ “erred in finding that [Plaintiff] has the [RFC]
to perform a reduced range of light work, thereby misapplying the
Medical-Vocational
Guidelines”
(id.
at
10
(capitalization
omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 14 at 10-19.)
1. Opinion Evidence
In Plaintiff’s first assignment of error, he contends that the
ALJ “erred in failing to accord appropriate weight to the opinion
evidence in the record.”
omitted).)
(Docket Entry 12 at 6 (capitalization
More specifically, Plaintiff maintains that the ALJ
“erred by according significantly less weight to [the opinions of
treating physician Dr. Jessica B. Wells] than to the consultative
opinions of Dr. Larry M. Gish and Dr. Amrutha Muthu, as th[o]se
5
(...continued)
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.”).
8
[latter] opinions were based upon a mere snapshot of [Plaintiff’s]
functioning for one day.”
(Id. at 8; see also Tr. 19-21 (ALJ’s
discussion regarding opinions of Drs. Muthu, Wells, and Gish), 46769 (Plaintiff’s February 28, 2014 office visit with Dr. Muthu),
471-77 (records of Dr. Gish’s consultative examination), 615-18
(Dr. Wells’s opinions.) Additionally, Plaintiff argues that, given
“[P]laintiff’s worsening condition” (Docket Entry 12 at 9), the ALJ
“erred by not giving the proper weight to [a] prior [ALJ] decision”
awarding Plaintiff benefits (id. at 8 (citing Tr. 70-79, and
Albright, 174 F.3d at 473)).
Plaintiff further asserts that the
ALJ “erred in failing to specifically address the significance of
[Plaintiff’s]
Global
Assessment
of
Functioning
(“GAF”)
scores
throughout the record,” all of which reflected “serious symptoms or
serious impairment in social, occupational, or school functioning.”
(Id. at 9.)6
a.
Plaintiff’s arguments fall short.
Treating Physician’s Opinion
Plaintiff first maintains that the ALJ “erred by according
significantly less weight to [the opinions of treating physician
Dr. Wells] than to the consultative opinions of [Drs. Gish and
6
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 GAF
of 41 to 50 reflects “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).”
Id. at 34. 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).
9
Muthu], as
th[o]se
[latter]
opinions
were
based
upon
snapshot of [Plaintiff’s] functioning for one day.”
The
treating
source
rule
generally
requires
an
a
mere
(Id. at 8.)
ALJ
to
give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.
20 C.F.R.
§ 416.927(c)(2) (“[T]reating sources . . . provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from
reports
of
examinations
individual
or
brief
examinations,
such
as
hospitalizations.”).
consultative
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).
10
In this case, on December 1, 2015, Dr. Wells completed a
Medical Source Statement of Ability to Do Work-Related Activities
(Physical) (“MSS”), opining that Plaintiff could occasionally and
frequently lift and/or carry less than 10 pounds (see Tr. 615),
could stand and/or walk for less than two hours total in a work day
(Tr. 616), must periodically alternate between sitting and standing
(id.), and possessed limited ability to push and/or pull with his
upper and lower extremities (id.).
In addition, Dr. Wells stated
that Plaintiff could occasionally climb and balance, but could
never kneel, crawl, or stoop (id.), could only occasionally reach
(Tr. 617), should have limited contact with vibration and workplace
hazards (Tr. 618), and “needs a cane for walking most of the time”
(id.).
range
Dr. Wells attributed those limitations to pain, limited
of
motion,
“clinically
and
consistent
weakness
with
in
spinal
Plaintiff’s
stenosis”
back
(Tr.
and
legs
616),
and
expressed “confiden[ce] [that] a MRI . . . would show significant
lumbar spine pathology but [Plaintiff] d[id] not have the funding
to obtain one” (Tr. 618).
Here, the ALJ’s evaluation of Dr. Wells’s opinion complied
with the regulatory requirements.
The ALJ discussed Dr. Wells’s
opinions on the MSS (see Tr. 19-20), but accorded those opinions
“little weight” for several reasons:
First, Dr. Wells had a relatively limited history with
[Plaintiff] at the time of her [MSS]; she had seen
[Plaintiff] only four occasions over the preceding eight
months. Next, her own treatment notes from this period
11
are wholly inconsistent with her opinions. For example,
in October 2015, she stated that [Plaintiff] had a
“normal range of motion” with no edema or tenderness.
Likewise, in July 2015, Dr. Wells stated that [Plaintiff]
had a normal range of motion with a normal gait. Despite
his complaints, Dr. Wells did not perform musculoskeletal
or neurological examinations in April or May [2015]. It
was only after Dr. Wells completed her [MSS] that she
began recording symptoms such as lower extremity
weakness, though she continued to observe “normal range
of motion.”
Rather than rely upon her own physical examinations to
support her opinions, Dr. Wells relied primarily upon a
2014 physical therapy assessment.
Physical therapy
notes, from June 2015, show that [Plaintiff] had a
greater than 50% loss in flexion and extension, with
pain. However, these notes, like Dr. Wells’s opinions,
are inconsistent with the remainder of the medical
record.
For instance, in his March 2014 consultative examination,
Dr. Larry M. Gish, M.D., observed that [Plaintiff] had
only slight limitations in flexion, with full extension
and lateral flexion[]. Moreover, Dr. Gish observed that
[Plaintiff’s] sensation to light touch was normal, and
that he had a normal gait and station, with good muscle
strength in all major distal and proximal muscle groups.
Dr. Gish also observed that [Plaintiff] had equal and
symmetrical reflexes and good grasp bilaterally.
Dr.
Gish noted that [Plaintiff] reported “some pain on
straight leg raising” but that it did not radiate down
his leg.
Thereafter, an examination by [Plaintiff’s] podiatrist
from the month preceding the above physical therapy note
showed [Plaintiff] to have full muscle strength in his
lower extremities bilaterally.
Subsequently, an August 11, 2014 musculoskeletal
examination found [Plaintiff] to have “full range of
motion throughout with no evidence of weakness.”
[Plaintiff] complained of aggravated back pain in October
2014, and demonstrated pain with range of motion testing.
However, even then, there was no evidence of tenderness
or muscle spasm, and straight let testing was negative
bilaterally.
Thereafter, emergency room records from
12
December 4, 2014 indicated that [Plaintiff] had
obvious motor, sensory, or cerebellar deficits.
no
Finally, emergency room records from August 2015
indicated that [Plaintiff] had full range of motion in
his back, with no pain upon palpation, no vertebral
tenderness, and full range of motion in all extremities.
He also possessed full strength in his lower extremities,
with normal plantar dorsiflexion of both great toes.
Objectively, imaging of [Plaintiff’s] lumbar spine, from
September 23, 2013, showed him to have a normal lumbar
spine, except for “mild” multilevel endplate osteophytes.
X-rays performed in October 2015 revealed moderate
levoscoliosis at the L3 level with “mild” degenerative
disc disease suspected in the lower lumbar spine. As
such, I give little weight to Dr. Wells’s speculation
regarding the probable outcome of MRI imaging because
such speculation is not supported by the available
objective imaging, and there are few, if any,
corresponding clinical findings that might support such
a conclusion.
Finally, as for [Plaintiff’s] left knee osteoarthritis,
the prior decision stated that MRI imaging of
[Plaintiff’s] left knee had shown lateral tibial plateau
edema, a nondisplaced subcortical fracture, and a small
joint effusion. In 2008, [Plaintiff] was given a knee
sleeve after subsequent imaging suggested that the joint
effusion had worsened. However, imaging of [Plaintiff’s]
left knee from September 2013 was benign, with no
evidence of a joint effusion, and the consultative
examiner noted that [Plaintiff] walked without a limp.
Based upon the foregoing, I find that Dr. Wells’s
opinions are unsupported by her own treatment records and
are inconsistent with the remaining objective medical
evidence.
(Tr. 20-21 (internal citations omitted) (emphasis added).)
In attacking the ALJ’s decision to accord “little weight” to
Dr. Wells’s opinions, Plaintiff does not address the ALJ’s abovequoted rationale.
(See Docket Entry 12 at 6-8.)
Rather, he
claims, without citation to record evidence, that “Dr. Wells’s
13
opinion is supported by acceptable medical techniques and there is
not persuasive contradictory evidence in the record such that her
opinion can be disregarded.” (Id. at 8.) However, that conclusory
assertion cannot hold up against the ALJ’s findings, supported by
specific references and citations to record evidence, that (1) Dr.
Wells’s “treatment notes . . . are wholly inconsistent with her
opinions” (Tr. 20); and (2) Dr. Wells’s “opinions . . . are
inconsistent with the remaining objective medical evidence” (Tr.
21).
Plaintiff
additionally
faults
the
ALJ
for
“according
significantly less weight to [Dr. Wells’s] opinion than to the
consultative opinions of [Drs. Gish and Muthu], as th[o]se opinions
were based upon a mere snapshot of [Plaintiff’s] functioning on one
day.”
(Docket Entry 12 at 8.)
erroneously
(Id.)
describes
Dr.
As an initial matter, Plaintiff
Muthu’s
opinions
as “consultative.”
Dr. Muthu, a psychiatrist at Daymark Recovery Services,
treated Plaintiff for his mental health symptoms on one occasion,
February
28,
2014
(see
Tr.
467-68),
but
did
not
conduct
a
consultative examination of Plaintiff at the request of the Social
Security Administration or any other agency. Moreover, the ALJ did
not merely accord more weight to Dr. Gish’s consultative opinions
than to Dr. Wells’s opinions.
(See Tr. 19-21.)
“The evidence
supported a contrary conclusion to [the treating physician’s]
opinion,
and
the
ALJ
was
not
14
prohibited
from
reaching
that
conclusion simply because non-treating physicians also reached it.”
Forrester v. Commissioner of Soc. Sec., 455 F. App’x 899, 902–03
(11th Cir. 2012). The ALJ here explained his decisions to give the
opinions of Drs. Gish and Wells their respective weights, and
supported that explanation with substantial evidence. (See Tr. 1921.)
b.
Prior ALJ Decision
Plaintiff next contends that, given “[P]laintiff’s worsening
condition” (Docket Entry 12 at 9), the ALJ “erred by not giving the
proper weight to [a] prior [ALJ] decision” awarding Plaintiff
benefits (id. at 8 (citing Tr. 70-79, and Albright, 174 F.3d at
473)).
The prior ALJ had found, on July 23, 2009, that Plaintiff
“lack[ed] the [RFC] to perform any work (even sedentary work) on a
sustained basis” (Tr. 77), since February 20, 2007.
(See Tr. 70-
79.)7
In Albright, the United States Court of Appeals for the Fourth
Circuit rebuffed the manner in which an ALJ treated a previous
ALJ’s denial of the claimant’s application for benefits. Albright,
174 F.3d at 474-78.
In that case, the new ALJ did not analyze
whether the claimant’s condition had worsened since the prior ALJ’s
decision, but rather simply adopted the prior ALJ’s denial of
benefits
as
res
Administration’s
judicata
(“SSA”)
based
upon
the
Acquiescence Ruling
7
Social
Security
94-2(4)
(“AR 94-
Plaintiff lost his entitlement to benefits in October 2011 due to his
incarceration following a felony conviction. (See Tr. 12.)
15
2(4)”).
Id. at 474, 475.
AR 94-2(4) required ALJs to adopt
findings from prior ALJ decisions unless the claimant produced new
and
material
application
evidence.
of
AR
Id.
94-2(4)
The
to
Fourth
Albright’s
Circuit
claim
for
found
the
benefits
“imprudent,” id. at 477, and contrary to the SSA’s long-standing
“treatment of later-filed applications as separate claims,” id. at
476.
In response to Albright, the SSA issued Acquiescence Ruling
00-1(4), (Interpreting Lively v. Secretary of Health and Human
Services) – Effect of Prior Disability Findings on Adjudication of
a Subsequent Disability Claim – Titles II and XVI of the Social
Security Act, 2000 WL 43774 (Jan. 12, 2000) (“AR 00-1(4)”).
AR 00-
1(4) provides as follows:
When adjudicating a subsequent disability claim . . ., an
[ALJ] determining whether a claimant is disabled during
a previously unadjudicated period must consider . . . a
prior finding [of a claimant’s RFC or other finding
required at a step in the SEP] as evidence and give it
appropriate weight in light of all relevant facts and
circumstances.
In determining the weight to be given
such a prior finding, an [ALJ] will consider such factors
as: (1) whether the fact on which the prior finding was
based is subject to change with the passage of time, such
as a fact relating to the severity of a claimant’s
medical condition; (2) the likelihood of such a change,
considering the length of time that has elapsed between
the period previously adjudicated and the period being
adjudicated in the subsequent claim; and (3) the extent
that evidence not considered in the final decision on the
prior claim provides a basis for making a different
finding with respect to the period being adjudicated in
the subsequent claim.
AR 00-1(4), 2000 WL 43774, at *4 (emphasis added).
16
The ALJ’s evaluation of the prior ALJ’s decision complies with
AR 00-1(4).
The ALJ noted at the outset of his decision that he
had “considered the prior ALJ decision as evidence, pursuant to
. . . AR 00-1(4), and [gave] the conclusions therein weight as
appropriate.” (Tr. 12.) The ALJ then further explained the weight
he accorded to the prior ALJ decision as follows:
. . . I have given little weight to the [RFC] findings
from the prior ALJ decision. In that decision, the ALJ
had found that [Plaintiff’s] pain and sleepiness
precluded him from performing work at the sedentary level
or of performing the mental demands of unskilled work on
a sustained basis. However, the ALJ also stated that he
expected that [Plaintiff’s] symptoms would improve with
treatment, and he recommended a continuing disability
review after 12 months.
(Tr. 22 (internal citation omitted) (emphasis added).)
Thus, the
ALJ expressly considered whether a “fact on which the prior [RFC]
finding was based” would likely change, AR 00-1(4), 2000 WL 43774,
at *4.
the
Moreover, the ALJ’s discussion of the evidence dated after
prior
ALJ’s
decision
on
July
23,
2009
(see
Tr.
17-23),
demonstrates that he considered “the extent that evidence not
considered in the final decision on the prior claim provides a
basis for making a different finding,” AR 00-1(4), 2000 WL 43774,
at *4.
c.
GAF Scores
Plaintiff further argues that the ALJ “erred in failing to
specifically address the significance of [Plaintiff’s] [GAF] scores
throughout the record,” all of which reflected “serious symptoms or
17
serious impairment in social, occupational, or school functioning.”
(Docket Entry 12 at 9.)
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
and
contrary
to
Plaintiff’s argument, the ALJ did explicitly discuss and assign
weight to the GAF scores of record:
The record also contains a number of [GAF] scores,
ranging from 41 to 45. Such scores indicate generally
serious symptoms. However, a GAF score is of limited
value in assessing functional capacity because it
represents a particular clinician’s subjective evaluation
at a single point in time. They may vary both from time
to time and between practitioners. Moreover, GAF scores
can be based upon factors not relevant to a determination
of disability, and are not designed for adjudicative
determinations. As such, [Plaintiff’s] GAF scores have
been considered, but have been given little weight.
18
(Tr. 22 (internal citation omitted).)
considered
in
the
context
of
the
That discussion, when
ALJ’s
prior
discussion
of
Plaintiff’s limited mental health treatment and minimal findings on
mental
status
examination
(see
Tr.
19),
allow
the
Court
to
meaningfully review the ALJ’s decision to accord the GAF scores
“little weight” (Tr. 22).
In sum, Plaintiff’s first claim on review entitles him to no
relief.
2. RFC
In Plaintiff’s second issue on review, he asserts that the ALJ
“erred in finding that [Plaintiff] has the [RFC] to perform a
reduced range of light work, thereby misapplying the MedicalVocational Guidelines.”
omitted).)
(Docket Entry 12 at 10 (capitalization
According to Plaintiff, his “credible testimony” (id.)
and Dr. Wells’s opinions establish his inability “to work at any
substantial
gainful
activity
level”
(id.
at
11).
Further,
Plaintiff points out that, had the ALJ “found that [P]laintiff
could perform sedentary work, a finding of disabled would have been
directed by [Rule 201.09 of] the Medical-Vocational Guidelines,”
which
“call[s]
into
question
Plaintiff to light work.”
[the
(Id.)
ALJ’s]
decision
to
limit
Plaintiff’s arguments fail to
warrant relief.
Plaintiff’s reliance on his own testimony to challenge the
ALJ’s RFC determination falls short. The ALJ evaluated Plaintiff’s
19
credibility, but determined that Plaintiff’s “statements concerning
the intensity, persistence, and limiting effects of [his] symptoms
[we]re not entirely credible.”
(Tr. 18.)
Plaintiff has not
challenged the ALJ’s credibility evaluation (see Docket Entry 12 at
6-11) and thus has not established that the ALJ erred in not fully
crediting
Plaintiff’s
statements
in
formulating
the
RFC.
Similarly, as discussed above in connection with Plaintiff’s first
issue on review, the ALJ did not err in discounting Dr. Wells’s
opinions.
Finally, according to Plaintiff, the fact that Rule 201.09 of
the
Medical-Vocational
Guidelines
would
direct
a
finding
of
disabled if the ALJ had limited Plaintiff’s RFC to sedentary work,
“call[s] into question [the ALJ’s] decision to limit Plaintiff to
light work, in contradiction with the medical evidence of record,
including the assessment of [Plaintiff’s] treating physician and
his documented need for an assistive device.”
(Id. at 11.)
In
essence, Plaintiff contends that the ALJ opted to set Plaintiff’s
RFC at the light level of exertion, without adequate support, to
avoid a finding of presumptive disability under Rule 201.09.
This contention fails in two respects.
First, the ALJ did
provide adequate support for the RFC determination, including,
inter alia, citing the findings of consultative examiner Dr. Gish,
who documented “only slight limitations” in range of motion, normal
sensation to light touch, normal gait and station, good muscle
20
strength in all major muscle groups, normal reflexes, and good
grasp.
claims
(Tr. 20 (citing Tr. 471-75).)
that
the
ALJ’s
light
RFC
To the extent Plaintiff
“contradict[ed]”
Dr.
Wells’
assessment and opinion that Plaintiff needed a cane, as discussed
above, substantial evidence supports the ALJ decision to discount
Dr. Wells’s opinions, and the ALJ explicitly included Plaintiff’s
need for an assistive device to ambulate in the RFC (see Tr. 17).
Second, Plaintiff has not supported her speculative argument
that the ALJ intentionally chose to set Plaintiff’s RFC at the
light level of exertion to avoid a disability finding under Rule
201.09 with any facts of record (see Docket Entry 12 at 11), an
omission which dooms that argument, see Calloway v. Barnhart, No.
CIV.A. 7:05CV00548, 2006 WL 2471525, at *4 (W.D. Va. Aug. 24, 2006)
(unpublished) (rejecting the plaintiff’s contention that “the ALJ
changed his interpretation of [the] plaintiff’s RFC to . . . place
[the plaintiff] in the medium work category, in order to avoid a
finding
of
disability
as
would
be
directed
by
the
Medical-Vocational Guidelines”).
Under these circumstances, Plaintiff’s second claim on review
lacks merit.
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
remand.
21
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment (Docket Entry 11) be denied, that Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 13) be granted, and that
this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 21, 2017
22
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