Granton v. Colvin
Filing
25
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 4/28/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DWAYNE GRANTON,
:
No. 3:15cv904
Plaintiff
:
:
(Judge Munley)
v.
:
: (Magistrate Judge Cohn)
1
NANCY A. BERRYHILL,
:
Acting Commissioner of the Social :
Security Administration,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Magistrate Judge Gerald B. Cohn’s
report and recommendation (hereinafter “R&R”). (Doc. 22). The R&R
proposes denying Plaintiff Dwayne Granton’s (hereinafter “plaintiff” or
“claimant”) appeal of Defendant Social Security Administration’s
(hereinafter “SSA”) decision denying his application for supplemental
1
When plaintiff filed this action, Carolyn W. Colvin was the Commissioner
of Social Security. Accordingly, plaintiff named her as the defendant in her
official capacity. Since then, however, Colvin left her position as
Commissioner. Nancy A. Berryhill became the Acting Commissioner of
Social Security on February 14, 2013. See OFFICIAL SOCIAL SECURITY
WEBSITE, http://blog.ssa.gov/meet-our-new-acting-commissioner/ (last
accessed March 24, 2017).
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill is substituted for Carolyn W. Colvin as the defendant in this suit.
FED. R. CIV. P. 25(d) (“An action does not abate when a public officer who
is a party in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending. The officer’s successor is automatically
substituted as a party.”)
security income (hereinafter “SSI”).2 Plaintiff filed objections to the R&R
(Doc. 23), and they are ripe for disposition.
Background
On August 1, 2011, plaintiff filed a protective application3 for SSI due
to bipolar, anxiety disorder, panic disorder, depression, and a learning
disorder. (Doc. 10, Admin. Record (hereinafter “R.”) at 34; 250-58; 321).4
Originally, plaintiff alleged that his disability began on July 1, 2011. (R. at
250). He later amended his disability onset date to October 28, 2011. (R.
at 211). On January 5, 2012, the SSA denied plaintiff’s application. (R. at
113-17). Plaintiff then filed a request for a hearing before an administrative
law judge (hereinafter “ALJ”). (R. at 121-23).
2
SSI is a federal income supplement program funded by general tax
revenues (not social security taxes). 42 U.S.C. § 1381. It is designed to
help the aged, blind, or disabled individuals who have little or no income.
42 U.S.C. § 1381a. Insured status is irrelevant in determining a claimant’s
eligibility for SSI benefits. 42 U.S.C. § 1382.
3
“Protective filing” is a term describing the first time an individual contacts
the Social Security Administration to file a claim for benefits. See 20 C.F.R.
§ 416.340; see also SOC. SEC. ADMIN. PROGRAM OPERATIONS MANUAL SYS.,
GN 00204.010. A protective filing date allows an individual to have an
earlier application date than the date the application is actually signed. 20
C.F.R. § 416.340.
4
References to “R. at __” are to pages of the administrative record filed by
the defendant as part of his answer on July 6, 2015.
2
The ALJ held hearings on May 2, 2013, and November 20, 2013.
Plaintiff testified via telephone that he was born June 3, 1977,
and obtained a GED in 1997. (R. at 37, 41). He worked as a cleaner for
Imperial Commercial Cleaning. (R. at 40, 43). Since July of 2011, he
worked sporadically for Labor Group, Performance Group, and Stop and
Shop. (R. at 44, 54-55). Plaintiff has been incarcerated at least three
times for convictions of robbery, weapons possession, and retail left. (R. at
37-39).
As mentioned above, plaintiff has alleged a disability onset date of
October 28, 2011, for mental health issues. (R. at 211). Plaintiff testified
that he received no inpatient hospitalization for mental health limitations
since October of 2011. (R. at 45). Additionally, he received no intensive
outpatient treatment for mental health. (R. at 45-46). Plaintiff also testified,
however, that he lived in a mental health unit while incarcerated because
he is unhappy, sad, not functioning, and endures panic attacks. (R. at 6264). Plaintiff testified he is unable to work because he “was told in a work
environment that [he] was not able to keep up and perform the work
properly . . . .” (R. at 53). Stated differently, he testified that his
supervisors would not let him work because he “wasn’t able to perform to
their standard.” (R. at 53; 60-61).
3
In a decision issued on November 27, 2013, the ALJ denied
plaintiff’s claims, finding that plaintiff is not disabled. (R. at 8-30). Plaintiff
requested that the SSA Appeals Council review the ALJ’s decision, but the
Appeals Council denied plaintiff’s request on March 9, 2015. (R. at 1-5).
Thus, the ALJ’s decision stood as the Commissioner’s final decision.5
As a result of the Commissioner’s denial of SSI, plaintiff filed an
appeal to this court on May 7, 2015.6 The Clerk of Court assigned
plaintiff’s appeal to Magistrate Judge Gerald B. Cohn, and on February 14,
2017, Magistrate Judge Cohn recommended that plaintiff’s appeal be
denied on grounds that substantial evidence supports the ALJ’s decision.
(Doc. 22). Plaintiff filed timely objections to the R&R (Doc. 23), and they
are ripe for disposition.
5
The Appeals Council may deny a party’s request for review or it may
decide to review a case and make a decision. The Appeals Council’s
decision, or the decision of the administrative law judge if the request for
review is denied, is binding unless a claimant files an action in federal
district court within sixty (60) days after receiving notice of the Appeals
Council’s action. 20 C.F.R. § 404.981.
6
Under the Local Rules of Court, “[a] civil action brought to review a
decision of the Social Security Administration denying a claim for social
security disability benefits” is “adjudicated as an appeal.” L.R. 83.40.1.
4
Jurisdiction
The court has federal question jurisdiction over this Social Security
Administration appeal. See 42 U.S.C. § 1383(c)(3) (“The final
determination of the Commissioner of Social Security after a hearing under
paragraph (1) shall be subject to judicial review as provided in section
405(g) of this title to the same extent as the Commissioner’s final
determinations under section 405 of this title.”); see also 42 U.S.C. § 405(g)
(“Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, irrespective of the
amount in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of notice of
such decision or within such further time as the Commissioner of Social
Security may allow. Such action shall be brought in the district court of the
United States for the judicial district in which the plaintiff resides, or has his
principal place of business . . . .”).
Standard of Review
In disposing of objections to a magistrate judge’s report and
recommendation, the district court must make a de novo determination of
those portions of the report against which objections are made. 28 U.S.C.
§ 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.
5
1983). The court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. Henderson v.
Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The district court judge may
also receive further evidence or recommit the matter to the magistrate
judge with instructions. Id.
In reviewing a Social Security appeal, the court must determine
whether “substantial evidence” supports the ALJ’s decision. See, 42
U.S.C. § 405(g); Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d
Cir. 2012); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). The United
States Supreme Court has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
The Third Circuit Court of Appeals has explained that “substantial evidence
has been defined as ‘more than a mere scintilla’; it means ‘such relevant
evidence as a reasonable mind might accept as adequate.’” Hagans, 694
F.3d at 292 (quoting Plummer, 186 F.3d at 427).
The court should not reverse the Commissioner’s findings merely
because evidence may exist to support the opposite conclusion. See 42
U.S.C. § 405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)
(stating that courts may not weigh the evidence or substitute its own
6
conclusion for those of the fact-finder); Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001) (indicating that when the ALJ’s findings of fact are
supported by substantial evidence, courts are bound by those findings,
even if they would have decided the factual inquiry differently). In an
adequately developed factual record, substantial evidence may be
“something less than the weight of the evidence, and the possibility of
drawing two inconsistent conclusions from the evidence does not prevent
an administrative agency’s finding from being supported by substantial
evidence.” Consolo, 383 U.S. at 620.
Substantial evidence exists only “in relationship to all the other
evidence in the record,” Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981),
and “must take into account whatever in the record fairly detracts from its
weight.” Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971).
“When a conflict in the evidence exists, the ALJ may choose whom to credit
but ‘cannot reject evidence for no reason or for the wrong reason.’”
Plummer, 186 F.3d at 429 (quoting Mason v. Shalala, 994 F.2d 1058, 1066
(3d Cir. 1993)). The Commissioner must indicate which evidence was
accepted, which evidence was rejected, and the reasons for rejecting
certain evidence. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d
Cir. 2008). Therefore, a court reviewing the decision of the Commissioner
7
must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968,
970 (3d Cir. 1981).
Discussion
To receive disability benefits, the plaintiff must demonstrate an
“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.” 42 U.S.C.
§ 423(d)(1)(A) (emphasis added). An individual is incapable of engaging in
“substantial gainful activity” when “his physical or mental impairment or
impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which
exists in the national economy[.]” 42 U.S.C. § 423(d)(2)(A).
The Commissioner evaluates SSI claims with a five-step sequential
analysis. 20 C.F.R. § 416.920(a)(4). This analysis requires the
Commissioner to consider, in sequence, whether a claimant (1) is engaging
in substantial gainful activity; (2) has an impairment, or combination of
8
impairments, that is severe;7 (3) has an impairment or combination of
impairments that meets or equals the requirements of a “listed impairment”;
(4) has the “residual functional capacity” to return to his or her past work;
and (5) if not, whether he or she can perform other work in the national
economy. 20 C.F.R. § 416.920(a)(4)(i)-(v).
In applying the five-step sequential analysis in the instant case, the
ALJ found at Step 1 that plaintiff had not engaged in substantial gainful
activity since October 28, 2011. (R. at 13). At Step 2, she found that
7
A “severe impairment” significantly limits a claimant’s physical or mental
ability to perform basic work activities. 20 C.F.R. § 416.920(c). Basic
physical work activities include the ability to walk, stand, sit, lift, carry, push,
pull, reach, climb, crawl, and handle. 20 C.F.R. § 416.921(b). An
individual’s basic mental or non-exertional abilities include the ability to
understand, carry out and remember simple instructions, and respond
appropriately to supervision, coworkers and work pressures. 20 C.F.R.
§ 416.921(b).
The determination of whether a claimant has any severe impairment
that has lasted or is expected to last for a continuous period of at least
twelve (12) months, at step two of the sequential evaluation process, is a
threshold test. 20 C.F.R. §§ 404.1509, 404.1520(c) & 416.920(c). If a
claimant does not have any severe impairment or combination of
impairments which significantly limits her physical or mental abilities to
perform basic work activities that has lasted or is expected to last for a
continuous period of at least twelve (12) months, the claimant is “not
disabled” and the evaluation process ends at step two. 20 C.F.R.
§§ 404.1509, 404.1520(c) & 416.920(c).
If a claimant has any severe impairments, the evaluation process
continues. 20 C.F.R. §§ 404.1520(d)-(g) and 416.920(d)-(g). Furthermore,
all medically determinable impairments, severe and non-severe, are
considered in the subsequent steps of the sequential evaluation process.
20 C.F.R. §§ 404.1523, 404.1545(a)(2), 416.923 & 416.945(a)(2).
9
plaintiff has the following severe impairments: affective disorder; anxietyrelated disorder; history of borderline intellectual functioning; personality
disorder; polysubstance abuse disorder; and status-post gunshot wound to
the abdomen. (R. at 13-14). At Step 3, the ALJ found that plaintiff does
not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments. (R. at 1418).
The ALJ next determined that plaintiff has the residual functional
capacity (hereinafter “RFC”) to
perform light work . . . with the following additional
restrictions: requires regular breaks, defined as a ten to
fifteen minute break midway through the first half of the
shift, a similar break midway through the second half of
the shift, a twenty to thirty minute break halfway through
the shift, and one or two five to ten minute unscheduled
restroom or drink breaks; use of bilateral hand/arm levers
or cranks limited to occasionally; climbing stairs limited to
occasionally; avoid altogether climbing ladders, ropes,
scaffolding, or poles as part of the work; stooping,
kneeling, crouching or squatting limited to occasionally;
avoid altogether crawling on hands and knees or feet as
part of the work; avoid concentrated exposure to extreme
cold; avoid altogether work around or with vibrating
objects or surfaces; no work around drugs, alcohol, or
prescription drugs; limited to simple duties that can be
learned on the job in a short period of time and that are
consistent with occupations having no GED value greater
than one; avoid altogether required direction interaction,
not just contact, with the general public as part of the
work; no more than occasional required direct interaction,
10
not just contact, with coworkers as part of the work; and
avoid work at a production rate pace that requires
constant pushing or pulling of materials.
(R. at 118-23). The ALJ then proceeded to Step 4 of the sequential
evaluation and received testimony from an impartial vocational expert
(hereinafter “VE”).
The VE testified that plaintiff could no longer work as a cleaner. (R.
at 74-75). Based on this testimony and a finding that the non-exertional
demands of plaintiff’s past work exceed the RFC, the ALJ found at Step 4
that plaintiff is unable to perform any past relevant work. (R. at 23).
Finally, at Step 5, the ALJ determined that plaintiff could still perform
other work that exists in significant numbers in the national economy. (R.
at 24-25). Specifically, the ALJ found that plaintiff could work as a bakery
worker, bakery racker, binder/machine feeder/offbearer, or poultry
eviscerator. (R. at 24). Because the ALJ concluded that plaintiff is capable
of making a successful adjustment to other work, she determined that
plaintiff is not disabled. (R. at 25).
The Clerk of Court assigned plaintiff’s appeal to Magistrate Judge
Gerald B. Cohn for a report and recommendation. Magistrate Judge Cohn
recommends denying plaintiff’s appeal and upholding the SSA’s decision
11
denying plaintiff’s SSI claim. (Doc. 22). Plaintiff filed objections to the R&R
(Doc. 23), and they are ripe for disposition.
Plaintiff’s objections raise the following three issues: (1) the
Magistrate Judge erred in finding that substantial evidence supports the
ALJ’s credibility determination; (2) the Magistrate Judge failed to properly
evaluate the consultative opinion of plaintiff’s psychologist; and (3) the
Magistrate Judge erred in determining that plaintiff failed to meet Listings
12.04 and 12.06. We address these issues in turn.
I. The ALJ’s Credibility Determination
Plaintiff first contends that the Magistrate Judge erred in finding that
substantial evidence supports the ALJ’s credibility determination. The
Magistrate Judge recommends affirming the ALJ’s credibility determination,
explaining that no credible medical evidence supports plaintiff’s subjective
complaints. After a careful review, with agree with the Magistrate Judge.
“Allegations of pain and other subjective symptoms must be
supported by objective medical evidence.” Hartranft v. Apfel, 181 F.3d 358,
362 (3d Cir.1999) (citation omitted). “If objective medical evidence fails to
substantiate the severity of the claimant’s pain or symptoms, then the ALJ
must make a credibility finding regarding the claimant’s subjective
statements.” Weidman v. Colvin, 164 F.Supp.3d 650, 656 (M.D. Pa. 2015)
12
(citing Social Security Ruling (hereinafter “SSR”) 96-7p). “An ALJ’s
credibility finding with respect to the severity of a claimant’s symptoms
requires consideration of the entire record.” Id. (citing SSR 96-7p). More
specifically, the ALJ must consider the following seven factors, in totality:
(1) claimant’s daily activities; (2) the location, duration, frequency, and
intensity of claimant’s pain or other symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of
any medication claimant takes or has taken to alleviate pain or other
symptoms; (5) treatment, other than medication, claimant receives or has
received for relief of pain or other symptoms; (6) any measures claimant
uses or has used to relieve pain or other symptoms; and (7) other factors
concerning claimant’s functional limitations and restrictions due to pain or
other symptoms. 20 C.F.R. § 416.929(c)(3).
In the instant matter, plaintiff argues that the Magistrate Judge erred
when considering the fifth factor, the treatment plaintiff received.
Specifically, plaintiff argues that the Magistrate Judge failed to explain how
plaintiff’s conservative treatment supports the ALJ’s finding that plaintiff’s
subjective complaints were not credible. Stated differently, plaintiff
contends that conservative treatment does not imply a lack of a disabling
13
limitation, and therefore, the ALJ erred by relying on plaintiff’s conservative
treatment when making her credibility determination. We disagree.
Great weight is given to a claimant’s subjective testimony only when it
is supported by competent medical evidence. Schaudeck v. Comm’r of
Social Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999); Dobrowolsky v.
Califano, 505 F.2d 403, 409 (3d Cir. 1979). A claimant’s subjective
complaints “may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints . . . .” Orndorff v. Colvin, — F.3d
—, 2016 WL 1450172, at *7 (M.D. Pa. Apr. 13, 2016) (quoting SSR 96-7p).
Here, to the extent that plaintiff argues that the Magistrate Judge
erred by relying on plaintiff’s conservative treatment in assessing plaintiff’s
credibility, we find no error. As this court has explained, “[a] finding that a
claimant received only conservative treatment is an appropriate
consideration in assessing credibility regarding disabling pain.” Skapely v.
Colvin, No. 3:15-cv-1065, 2015 WL 7351583, at *12 (M.D. Pa. Nov. 30,
2015) (citing Garrett v. Comm’r of Soc. Sec., 274 F. App’x 159, 164 (3d Cir.
2008)).
Additionally, substantial evidence supports the ALJ’s credibility
determination, as no medical evidence supports plaintiff’s allegations
regarding the intensity, persistence, and limiting effects of his impairments.
14
Specifically, plaintiff never consistently treated for his alleged mental health
symptoms, he regularly denied mental health symptoms, he reported only
minor disorders, and he presented with minimal findings upon examination.
(R. at 438-527; 622-674; 675-792).
As mentioned above, plaintiff’s treatment of his alleged symptoms is
only one of seven factors requiring the ALJ’s consideration. See 20 C.F.R.
§ 416.929(c)(3). Plaintiff, however, challenges no other factor addressed
by the ALJ, and therefore, his objection to the R&R with respect to this
issue will be overruled.
II. Evaluation of Plaintiff’s Consultative Psychologist’s Opinion
Plaintiff next contends that the Magistrate Judge erred in assigning
“lesser weight” to the consultative opinion of plaintiff’s psychologist, Barry
B. Hart, Ph.D. (hereinafter “Dr. Hart”). We disagree.
Medical opinions are statements from acceptable medical sources
that reflect judgments about the nature and severity of a claimant’s
impairments. 20 C.F.R. § 416.927(a)(1). “The more a medical source
presents relevant evidence to support a medical opinion, particularly
medical signs and laboratory findings, the more weight [an ALJ] will give
that medical opinion.” 20 C.F.R. § 416.927(a)(3). “Generally, the more
15
consistent a medical opinion is with the record as a whole, the more weight
[an ALJ] will give to that medical opinion.” 20 C.F.R. § 416.927(a)(4).
In the instant matter, the ALJ found the opinion of plaintiff’s
consultative psychologist, Dr. Hart, to be “internally inconsistent.” (R. at 2223). Specifically, Dr. Hart calculated plaintiff’s Global Assessment of
Functioning (hereinafter “GAF”) score to be 55-60, which the ALJ
concluded “suggests no more than moderate symptoms or functional
loss[.]” (R. at 22). Dr. Hart’s GAF calculation, explained the ALJ,
is in opposite to the marked functional abilities noted in
the function-by-function assessment and Dr. Hart failed to
clarify the inconsistency in these opinions in his report.
. . . Dr. Hart did not have any outside records available for
his review at the time this opinion was rendered. This is
particularly important as [Plaintiff] subjectively reported
extensive symptoms and a personal history that is
obviously inconsistent with that reported elsewhere in the
records, and similarly presented upon mental status
examination with findings no[t] present upon any other
objective examination[.]
(R. at 22).
Additionally, the ALJ found that Dr. Hart relied extensively on
plaintiff’s subjective complaints rather than objective clinical findings. In
particular, Dr. Hart notes that plaintiff reported problems with short-term
memory, impulse control based on a “history of fighting[,]” and being “fired
on a number of occasions for losing his temper and having a bad attitude.”
16
(R. at 533). Plaintiff’s subjective complaints, however, are inconsistent with
his own reports elsewhere in the record, as he regularly denied mental
health symptoms, reported only minor disorders, and presented with
minimal findings upon examination. (R. at 438-527; 622-674; 675-792).
The Third Circuit Court of Appeals has explained that the “mere
memorialization of a claimant’s subjective statements in a medical report
does not elevate those statements to a medical opinion.” Morris v.
Barnhart, 78 F. App’x 820, 824 (3d Cir. 2003); see also 20 C.F.R. §
416.908 (explaining that a physical or mental impairment must be
established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by a claimant’s statement of symptoms). Here,
plaintiff’s subjective complaints are at odds with the medical evidence
established elsewhere in the record. Because Dr. Hart extensively relied
on plaintiff’s subjective complaints in his consultative psychological report,
the ALJ committed no error in assigning it “lesser weight.”
For these reasons, substantial evidence supports the ALJ’s
assignment of “lesser weight” to Dr. Hart’s opinion. Plaintiff’s objection to
the R&R with respect to this issue will thus be overruled.
17
III. Listings 12.04 and 12.06
Finally, plaintiffs contends that the Magistrate Judge erred in finding
that plaintiff did not meet Listings 12.04 and 12.06. Specifically, plaintiff
avers that substantial evidence establishes that he suffered: (1) a marked
impairment in maintaining social functioning; and (2) marked difficulties in
maintaining concentration, persistence, or pace. After a careful review, we
agree with the Magistrate Judge that plaintiff did not meet Listings 12.04
and 12.06.
“To meet the requirements of a listing, [a claimant] must have a
medically determinable impairment(s) that satisfies all of the criteria in the
listing.” 20 C.F.R. § 404.1525(d) (emphasis added). As the Third Circuit
has summarized:
For a claimant to show that his impairment matches a
listing, it must meet all of the specified medical criteria.
An impairment that manifests only some of those criteria,
no matter how severely, does not qualify. For a claimant
to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is ‘equivalent’
to a listed impairment, he must present medical findings
equal in severity to all the criteria for the one most similar
listed impairment.
Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992) (quoting Sullivan
v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original) (internal
quotation marks and citations omitted)). Thus, if a claimant fails to satisfy
18
one element of the listed criteria, substantial evidence will support the
ALJ’s determination that the claimant does not meet a Listing. See id.
In the instant matter, plaintiff contends that he has: (1) a social
functioning impairment that meets Listing 12.04; and (2) a concentration,
persistence, or pace impairment that meets Listing 12.06. We address
plaintiff’s contentions in turn.
First, plaintiff contends that he has a social functioning impairment
that meets Listing 11.04. Under the law applicable at the time of the ALJ’s
decision, “social functioning” refers to:
[the claimant’s] capacity to interact independently,
appropriately, effectively, and on a sustained basis with
other individuals. Social functioning includes the ability to
get along with others, such as family members, friends,
neighbors, grocery clerks, landlords, or bus drivers. [The
claimant] may demonstrate impaired social functioning by,
for example, a history of altercations, evictions, firings,
fear of strangers, avoidance of interpersonal
relationships, or social isolation. [The claimant] may
exhibit strength in social functioning by such things as [his
or her] ability to initiate social contacts with others,
communicate clearly with others, or interact and actively
participate in group activities. We also need to consider
cooperative behaviors, consideration for others,
awareness of others’ feelings, and social maturity. Social
functioning in work situations may involve interactions
with the public, responding appropriately to persons in
authority (e.g., supervisors), or cooperative behaviors
involving coworkers.
19
We do not define “marked” by a specific number of
different behaviors in which social functioning is impaired,
but by the nature and overall degree of interference with
function. For example, if [the claimant is] highly
antagonistic, uncooperative, or hostile but [is] tolerated by
local storekeepers, we may nevertheless find that [the
claimant has] a marked limitation in social functioning
because that behavior is not acceptable in other social
contexts.
20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00C2.
Here, the ALJ found that plaintiff has only moderate difficulties in
social functioning, and therefore, does not meet Listing 12.04. (R. at 16).
Specifically, the ALJ explained:
[T]he claimant was admittedly able to independently and
appropriately attend to his personal care, prepare meals,
complete household tasks, use public transportation, and
handle money and manage his finances, suggestive of no
more than moderate restriction in activities of daily living
despite extensive mental health complaints (Exhibits 4E
and 11E, Testimony). Similarly, although the claimant
alleges social isolation and difficulty getting along with
authority figures friends, family members, and neighbors,
he was admittedly able to leave his home unaccompanied
as needed, live and interact with others without reported
difficulty, and use public transportation, all of which
suggest at least some degree of retained functionality in
this domain (Id.).
(R. at 16). The ALJ also noted that plaintiff reported mental health
symptoms and poor functioning on examination only when he presented for
his consultative examination connected with his SSI application. Indeed,
past medical evidence indicates that plaintiff denied mental health
20
symptoms and reported only minor disorders, with objectively minimal
findings on examination. (R. at 438-527; 622-674; 675-792). In particular,
plaintiff admitted he can go out alone, live and interact with others without
difficulty, and use public transportation. (R. at 16; 335-339). While
incarcerated, he denied ever feeling so irritable that he found himself
shouting at people or starting arguments. (R. at 625). Similarly, plaintiff’s
treatment providers, including Dr. Hart, indicated plaintiff’s cooperative and
controlled behavior. (R. at 524, 531, 788, 792).
Additionally, the ALJ relied on the consultative psychological opinion
of Helen Parshall, Ph.D., to determine that plaintiff did not meet Listing
12.04. Dr. Parshall opined that plaintiff has moderate difficulties in
maintaining social functioning. (R. at 105). Specifically, she determined
that plaintiff’s impairments “are of sufficient severity to warrant ongoing
counseling, vocational training, and community support.” (R. 108). These
impairments, however, do “not result in marked or extreme functional
limitations that would preclude engagement in simple routine work
activities.” (R. at 108-09). According to Dr. Parshall, plaintiff is still “able to
function independently and complete simple chores.” (R. 108). In
particular, although plaintiff complains of social avoidance and a lack of
trust with other people, he is nonetheless “independent with personal care,
21
prepares daily meals, and can pay bills when finances allow.” (R. at 105).
Thus, Dr. Parshall concluded that plaintiff is “capable of simple, routine
work.” (R. at 108).
Based on plaintiff’s inconsistent medical history and Dr. Parshall’s
medical opinion, we find that the record lacks evidence of a marked
limitation in social functioning. Rather, we agree with the Magistrate Judge
and find that substantial evidence supports the ALJ’s determination that
plaintiff did not meet Listing 12.04. Plaintiff’s objection to the R&R in this
regard will thus be overruled.
Second, plaintiff contends that he has a concentration, persistence,
or pace impairment that meets Listing 12.06. Under the law applicable at
the time of the ALJ’s decision, “concentration, persistence, or pace” refers
to:
[T]he ability to sustain focused attention and
concentration sufficiently long to permit the timely and
appropriate completion of tasks commonly found in work
settings. Limitations in concentration, persistence, or
pace are best observed in work settings, but may also be
reflected by limitations in other settings. In addition,
major limitations in this area can often be assessed
through clinical examination or psychological testing.
Wherever possible, however, a mental status examination
or psychological test data should be supplemented by
other available evidence.
22
On mental status examinations, concentration is
assessed by tasks such as having you subtract serial
sevens or serial threes from 100. In psychological tests
of intelligence or memory, concentration is assessed
through tasks requiring short-term memory or through
tasks that must be completed within established time
limits.
In work evaluations, concentration, persistence, or pace is
assessed by testing your ability to sustain work using
appropriate production standards, in either real or
simulated work tasks (e.g., filing index cards, locating
telephone numbers, or disassembling and reassembling
objects). Strengths and weaknesses in areas of
concentration and attention can be discussed in terms of
your ability to work at a consistent pace for acceptable
periods of time and until a task is completed, and your
ability to repeat sequences of action to achieve a goal or
an objective.
20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00C2. As with social
functioning, a “marked” limitation in concentration, persistence, or pace is
not defined by a specific number of tasks that the claimant is unable to
complete, but by the nature and overall degree of interference with
function. Id. For example, a claimant who is unable to sustain attention
and persist in complex tasks, but is able to sustain attention and persist in
simple tasks does not have a marked limitation. Id.
Here, the ALJ found that plaintiff has only moderate difficulties in
concentration, persistence, and pace, and therefore, does not meet Listing
12.06. (R. at 16). Specifically, the ALJ explained:
23
[D]espite [the claimant’s] allegations of difficulty
remembering, concentrating, sustaining attention,
finishing what he starts, following written or oral
instructions, handling stress, and handling changes in
routine, the claimant admittedly retains adequate
cognition and mentation to cook, use public transportation
independently, and handle money and manage his own
finances, suggestive of at least some degree of retained
functionality in the area of concentration, persistence, or
pace ([Exhibits 4E and 11E, Testimony]).
(R. at 16). The ALJ also noted that plaintiff failed to provide any third-party
reporting that might corroborate his allegations of more debilitating mental
health disorders, and that the available medical evidence does not suggest
more than moderate limitations. (R. at 16-17). Despite these moderate
limitations, plaintiff’s medical status examinations revealed that plaintiff had
average intelligence, fair insight, fair judgment, intact memory, and a
motivation for treatment. (R. at 525).
Additionally, the ALJ again relied on the consultative psychological
opinion of Dr. Parshall to determine that plaintiff did not meet Listing 12.06.
Dr. Parshall opined that plaintiff has moderate difficulties in maintaining
concentration, persistence, and pace. (R. at 105). As mentioned above,
she determined that plaintiff’s impairments “are of sufficient severity to
warrant ongoing counseling, vocational training, and community support.”
(R. 108). These impairments, however, do “not result in marked or extreme
functional limitations that would preclude engagement in simple routine
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work activities.” (R. at 108-09). According to Dr. Parshall, plaintiff is still
“able to function independently and complete simple chores.” (R. 108). In
particular, although plaintiff’s educational history indicates a “borderline to
mild range of impairment[,]” he “completed his ADL questionnaire with
reasonable level of competency suggesting, minimally, functional literacy
capacities.” (R. at 105). Similarly, although plaintiff “is easily distracted[,]”
he can still complete tasks. (R. at 105). During the examination, plaintiff
presented as oriented with low average to borderline intelligence, and no
particular mannerisms other than hypoactive behavior. (R. at 108). Thus,
Dr. Parshall concluded that plaintiff is “capable of simple, routine work.” (R.
at 108).
Based on plaintiff’s inconsistent medical history and Dr. Parshall’s
medical opinion, we find that the record lacks evidence of a marked
limitation concentration, persistence, or pace. Rather, we agree with the
Magistrate Judge and find that substantial evidence supports the ALJ’s
determination that plaintiff did not meet Listing 12.06. Plaintiff’s objection to
the R&R in this regard will thus be overruled.
Conclusion
For the above-stated reasons, we find that substantial evidence
supports the ALJ’s decision denying plaintiff’s application for SSI. Thus, we
25
will overrule plaintiff’s objections, adopt the R&R, dismiss plaintiff’s appeal,
and close this case. An appropriate order follows.
Date: April 28, 2017
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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