Rinaca v. Colvin

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge Michael S. Nachmanoff on 03/28/16. (cmar, )

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

GARY FRANKLIN RINACA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Civil Action No. 1:15-cv-1242- MSN

MEMORANDUM OPINION
This matter is before the Court on the parties’ cross Motions for Summary Judgment
(Dkt. Nos. 10, 12). The parties have consented to the jurisdiction of the undersigned
Magistrate Judge with respect to the Motions, see Joint Consent (Dkt. No. 15), which concern
Plaintiff’s appeal of the Social Security Administration’s determination that he is not disabled
within the meaning of the Social Security Act. For the reasons that follow, the Court will
grant Defendant’s Motion for Summary Judgment, deny Plaintiff’s Motion, and affirm the
Agency’s decision.
I.

Background
A.

Plaintiff’s Disability

On April 25, 2011, Plaintiff applied for disability insurance benefits, claiming a
disability onset date of January 10, 2010. See Tr. 13, 186-89; Df. Br. 2. Plaintiff suffers from
schizophrenia, as well as obesity caused by his treatment for that disorder. The parties do not
dispute the existence of Plaintiff’s disability, only its severity.
Plaintiff reports that he has heard voices since the death of his grandfather in 1990.

Tr. 451. Plaintiff’s wife first began to notice his symptoms in 2005. Tr. 57. It appears from the
record, however, that Plaintiff only began receiving treatment in 2007 following a violent
episode that resulted in Plaintiff’s brief institutionalization. Id.; see also Tr. 49. Since that
time, Plaintiff has managed his schizophrenia with medication and regular psychiatric care.
The record includes Plaintiff’s medical records, which chart the progress of Plaintiff’s
disorder from its diagnosis to a point shortly before the administrative hearing on Plaintiff’s
claim. The notes of Dr. Carl Hunt indicate that Plaintiff responded positively to treatment, and
that while Plaintiff evinced “[d]isorganized thoughts” in May of 2008, Plaintiff’s symptoms
“significantly improved” by June of that same year. Tr. 489-90. In a series of reports between
June of 2008 and July of 2011, Dr. Hunt consistently found that although Plaintiff’s affect
was restricted and his mood dysthymic, Plaintiff “appeared alert and oriented,” “dressed
appropriately,” was “cooperative,” and demonstrated “thought processes [that] were coherent
and goal oriented without loose associations or flight of ideas.” Tr. 471-89.
Dr. Hunt’s evaluation of Plaintiff’s condition during this period is corroborated by the
notes of Dr. Joanna Lynch, who met with Plaintiff on December 28, 2010. Dr. Lynch
recorded that Plaintiff “presented as well dressed and groomed appropriately,” and that
Plaintiff reported that he had “been doing well,” “rarely hear[d] voices and experience[d]
racing thoughts,” and “denied the presence of any [other] medical conditions.” Tr. 303.
Similarly, Dr. Jyoti Supanekar noted in a series of reports spanning December of 2011
to April of 2013 that Plaintiff’s thought processes, affect, and behavior were within normal
limits, Plaintiff’s memory was not impaired, and Plaintiff exhibited “fair” judgment and
insight, as well as “adequate” personal grooming. Tr. 455-68. During this time, Dr. Supanekar
consistently noted that Plaintiff’s condition appeared “stable,” and assigned Plaintiff a score

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of 65 on the Global Assessment of Functioning (GAF) scale. See id. Although the most recent
edition of the Diagnostic & Statistical Manual of Mental Disorders has abandoned the GAF
scale, see Report & Recommendation, Persaud v. Colvin, No. 12-cv-661 (E.D. Va. Oct. 2,
2013) at 8 n.1, previous editions of the Manual stated that GAF scores between 60 and 70
indicate only mild symptoms or functional limitations. See Diagnostic & Statistical Manual of
Mental Disorders-Text Revision 34 (4th ed. 2000).
Most recently, the record includes the notes of a February 20, 2014 meeting between
Plaintiff and Counselor Spring Richardson. Ms. Richardson noted that Plaintiff “was fairly
groomed,” appeared “alert, oriented . . ., coherent, and cooperative,” and demonstrated a
“logical and fluently expressed” train of thought. Tr. 500. She found further that Plaintiff
“seem[ed] reasonably open and accessible” with “good range and responsiveness” of affect,
and that Plaintiff “in the interview was able to concentrate adequately.” Id. She noted that
while Plaintiff “report[ed] slight auditory hallucinations,” Plaintiff said he “is generally able
to ignore them.” Id.
The record also includes a self-evaluation submitted by Plaintiff, as well as a third
party function report submitted by Plaintiff’s wife. Plaintiff’s self-evaluation states that he has
“trouble dealing with stress, which causes [his] mind to race,” and leaves him unable to
“concentrate on one thing.” Tr. 249. Plaintiff reports that he “hear[s] voices daily” which
distract him and leave him feeling “paranoid.” Id. The report submitted by Plaintiff’s wife
details significant difficulties maintaining Plaintiff’s hygiene, and states that Plaintiff is
largely unable to contribute to household chores. See Tr. 253-57. It further reflects that
Plaintiff cannot handle his own finances, is socially isolated, limited in his ability to follow
instructions, and is unable to concentrate because he “has too many things racing through his

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mind.” Tr. 258-60. The report states that at least on two occasions, Plaintiff was fired from a
job for unusual behavior related to his schizophrenia. Tr. 260.
Finally, the record contains evidence showing that, notwithstanding his disorder,
Plaintiff continued to work intermittently as a carpenter after the claimed onset of his
disability. These jobs were generally short-lived, either because they were temporary, Plaintiff
quit, or Plaintiff was fired. Plaintiff’s most recent job, however, lasted five months and ended
shortly before the administrative hearing held on Plaintiff’s claim. See Tr. 36, 273. During
that time, Plaintiff evidently worked full-time before he was eventually laid off.
B.

Administrative Proceedings

Plaintiff received a hearing on his claim before an administrative law judge (ALJ) on
March 13, 2014. At the hearing, much of Plaintiff’s testimony concerned his employment
following the onset of his alleged disability. In explaining why he had been fired from several
jobs, Plaintiff stated that he was laid off due to “the quality of [his] work,” or because he
“wasn’t productive enough.” Tr. 41; see also id. (Plaintiff laid off because he was “building
about one staircase an hour, which wasn’t quite enough”). Asked why he had lost his job of
five months shortly before the hearing, Plaintiff responded that it was “[b]ecause [he] made
$3.00 more an hour than the guy that they hired after [him],” and “they just d[id]n’t have
enough work to keep everybody busy.” Tr. 50.
Asked if he would return to work if given the opportunity, Plaintiff replied that he
would because he “really lik[ed] [his] job” and “wanted to keep [his] job.” Tr. 50. Plaintiff
stated that he was already independently looking for work “less demanding, or not so
physically demanding” as his work as a carpenter. Tr. 51. Plaintiff said that he was “happy
with [his] career” and was hoping to “work for another 12 or 15 years,” but that he was

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having trouble because “with this economy and with my situation, being laid off, you know, I
just don’t know where to turn.” Tr. 53.
Plaintiff’s wife also offered testimony at the hearing, stating that Plaintiff had been
unable to hold a job because often he was “not . . . able to understand,” “pay attention,” or
“keep up” with the work, and had been fired from several jobs for behavior related to his
schizophrenia. Tr. 56-57. She testified further that Plaintiff suffers from racing thoughts, has
trouble following instructions, and is unwilling to maintain his own hygiene. Tr. 59-61.
Among other things, Plaintiff’s wife testified that Plaintiff would occasionally go weeks—
even months—without showering, and had only recently started brushing his teeth with any
regularity. Tr. 60-61. Finally, she stated that Plaintiff is socially isolated, and that his daily
activities are extremely limited. Tr. 61-62.
At the hearing, the ALJ also solicited testimony from a vocational expert. The ALJ
asked the expert whether work would be available to Plaintiff assuming that Plaintiff is
capable of performing only “work that involves simple, routine, and repetitive tasks in entry
level unskilled work that does not involve interaction with the general public, and only
involves occasional interaction with coworkers and supervisors.” Tr. 66-67. The vocational
expert answered in the affirmative, concluding that “[t]here would be many jobs” available to
Plaintiff at all exertional levels, including employment as an “industrial cleaner,”
“construction worker,” and “packer sealer.” Tr. 67-68. He added, however, that Plaintiff
would be required to stay on task “at least 80 percent” of the time in order to remain
competitive. Tr. 69.
On April 17, 2014, the ALJ issued an opinion holding that Plaintiff is not disabled
within the meaning of the Social Security Act. Tr. 8-22. Employing the five-step inquiry

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required by the Social Security Act, the ALJ first determined that Plaintiff’s work activity
following the onset of his alleged disability “did not rise to the level of substantial gainful
activity” that would render Plaintiff ineligible for benefits, but was “probative as to the
medical-vocational issues in this matter.” Tr. 13.
The ALJ next determined that Plaintiff’s schizophrenia and obesity constitute severe
impairments. Tr. 14-15. He found, however, that Plaintiff’s schizophrenia does not meet the
requirements of 20 CFR part 404, subpart P, appendix 1, section 12.03B, which would result
in an automatic determination of complete disability. Tr. 14. The ALJ reasoned that the record
showed Plaintiff suffered only “moderate” limitations rather than the “marked” functional
restrictions required by that regulation. Tr. 14-15.
Finally, the ALJ found that Plaintiff retained the “residual functional capacity to
perform a full range of work at all exertional levels,” but limited to “work involving simple
and routine tasks in entry-level unskilled work, that does not involve interaction with the
general public, and only involves occasional interaction with coworkers and supervisors.”
Tr. 15. The ALJ noted that Plaintiff’s treating physicians consistently found Plaintiff’s
symptoms related to his schizophrenia to be mild, and that Plaintiff’s medical records showed
his “medications have been relatively effective in controlling [his] symptoms.” Tr. 18-19. In
light of those findings and Plaintiff’s work activity, the ALJ discounted testimony taking a
dimmer view of Plaintiff’s abilities:
[T]he record reflects work activity after the alleged onset date.
Although that work activity did not necessarily constitute disqualifying
substantial gainful activity, it does indicate that the claimant’s daily
activities have, at least at times, been somewhat greater than the
claimant has generally reported. The claimant’s relatively benign
physical examinations and mental evaluations belie allegations of
disabling symptoms or functional limitations.

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Tr. 20. The ALJ also assigned “great weight” to the reports of “State agency disability
physicians and psychological consultants” that had reviewed the record and reached the same
conclusion, finding the reports “consistent with and supported by the other evidence of
record.” Tr. 20-21.
Plaintiff appealed the ALJ’s decision to the Appeals Council, which declined to
review the case. Tr. 1-4. This appeal followed pursuant to 42 U.S.C. § 405(g).
II.

Legal Standard

“In reviewing a decision of the Commissioner, the Court is limited to determining
whether the Commissioner’s decision was supported by substantial evidence on the record,
and whether the proper legal standard was applied in evaluating the evidence.” Young v. Soc.
Sec. Admin., No. 13-cv-63, 2014 WL 949040, at *3 (E.D. Va. Mar. 10, 2014); 42 U.S.C. §
405(g). Substantial evidence “consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966).
Determining whether substantial evidence supports the Commissioner’s decision requires that
the court independently “examine the record as a whole,” Taylor v. Astrue, No. 10-cv-382,
2011 WL 2437769, at *2 (E.D. Va. June 14, 2011), report and recommendation adopted, No.
10-cv-382, 2011 WL 2693495 (E.D. Va. July 11, 2011), including “whatever in the record
fairly detracts from its weight.” Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir.1974).
Nonetheless, the court may not “undertake to re-weigh the conflicting evidence, make
credibility determinations, or substitute [its] judgment for that of the Secretary.” Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990). “While the standard is high, where the ALJ’s
determination is not supported by substantial evidence on the record, or where the ALJ has
made [an] error of law, the district court must reverse the decision.” Taylor v. Barnhart, No.

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02-CV-739, 2001 WL 34614944, at *2 (E.D. Va. July 11, 2001), aff’d, 97 F. App’x 455 (4th
Cir. 2004).
III.

Discussion

Determining whether an applicant is eligible for disability insurance benefits under the
Social Security Act entails a “five-part inquiry” that “asks: whether (1) the claimant is
engaged in substantial gainful activity; (2) the claimant has a medical impairment (or
combination of impairments) that are severe; (3) the claimant’s medical impairment meets or
exceeds the severity of one of the impairments listed in Appendix I of 20 C.F.R. Part 404,
subpart P; (4) the claimant can perform her past relevant work; and (5) the claimant can
perform other specified types of work.” Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006).
Here, the ALJ held at step five that Plaintiff retains the “residual functional capacity to
perform a full range of work at all exertional levels,” limited to “work involving simple and
routine tasks in entry-level unskilled work, that does not involve interaction with the general
public, and only involves occasional interaction with coworkers and supervisors.” Tr. 15.
As Plaintiff does not challenge the legal standard applied by the ALJ in arriving at this
conclusion, the Court’s role is limited to assessing whether substantial evidence supports the
ALJ’s holding. See Young, 2014 WL 949040, at *3. Accordingly, Plaintiff is entitled to
prevail only if the evidence in the record is such that no “‘reasonable mind might accept [it] as
adequate to support [the ALJ’s] conclusion.’” Prof’l Massage Training Ctr., Inc. v.
Accreditation All. of Career Sch. & Colleges, 781 F.3d 161, 174 (4th Cir. 2015) (quoting
Almy v. Sebelius, 679 F.3d 297, 301 (4th Cir.2012)). Given the record in this case, Plaintiff
has failed to meet that high bar.
The ALJ’s opinion is supported by thorough citations to Plaintiff’s medical records.

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See Tr. 17-20. Those records reflect that the medical professionals treating Plaintiff uniformly
described Plaintiff’s symptoms as mild, and Plaintiff as, for example, “coherent and goal
oriented without loose associations or flight of ideas,” evincing a “logical and fluently
expressed” train of thought, and “able to concentrate adequately.” Tr. 303, 455-68, 471-89,
500. While it is clear that Plaintiff is not entirely free of symptoms—that Plaintiff, for
example, still hears voices even when taking his medication—Plaintiff’s treating psychiatrists
consistently found that he is largely able to manage his schizophrenia.1 The ALJ was amply
justified in relying on this medical evidence in determining Plaintiff’s residual capacity. See
Tr. 17-20; see also 20 C.F.R. § 404.1527(c)(2) (findings of treating physician are given
controlling weight when “not inconsistent with the other substantial evidence in [the] case
record”). Given the above, the ALJ was also justified in his decision to give significant weight
to the reports of state psychological consultants, which were based upon this compelling
medical evidence. See Tr. 20-21.2
Moreover, the ALJ properly considered Plaintiff’s recent work activity in evaluating
Plaintiff’s residual capacity. Tr. 13, 20. “The general rule is one amply supported by common
sense: the Secretary can consider work done by the claimant after the alleged onset of
disability as tending to show that the claimant was not then disabled.” Sigmon v. Califano,
617 F.2d 41, 42-43 (4th Cir. 1980) (per curiam). Here, the ALJ found that Plaintiff’s recent
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Plaintiff argues that the medical evidence regarding Plaintiff’s capacity is inconsistent because one
report states Plaintiff is unable to concentrate for more than a few minutes at a time. See Pl. Br. 9; Hrg. Audio
10:06:00. The passage in question, however, is not a medical finding but merely Plaintiff’s own “estimate[ ] [of]
his attention span” as recorded by his treating psychiatrist. Tr. 452. In the same passage, Plaintiff’s psychiatrist
observes that Plaintiff’s attention span was sufficient to permit Plaintiff to “appropriately respond to questions by
this writer” during what was surely an interview lasting more than a few minutes. Id.
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Plaintiff points out that the ALJ erroneously states that the reports in question were authored by “State
agency disability physicians and psychological consultants,” when in fact no “physicians” were involved in
preparing the reports. Plaintiff, however, fails to explain why it is relevant that the “assessments were done by
PHD [sic] psychologists and not by physicians.” Pl. Rep. 2. Certainly Plaintiff does not claim that the
psychologists who authored the reports were unqualified to render an opinion regarding Plaintiff’s disorder, or
that the absence of a physician’s input undermined the reports’ reliability.

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employment demonstrated that Plaintiff’s “daily activities have . . . been somewhat greater
than [Plaintiff] has generally reported.” Tr. 20. The ALJ relied upon this, as well as the
medical records discussed above, to discount testimony from Plaintiff and his wife regarding
Plaintiff’s functional limitations—testimony that took a far less optimistic view of Plaintiff’s
capabilities. Tr. 17, 20.
While Plaintiff faults the ALJ for that decision, the ALJ’s opinion identifies
thoroughly and specifically what evidence in the record contradicted the testimony in
question. Plaintiff does not dispute the presence of such evidence in the record, but rather
takes issue with the weight the ALJ assigned it. This provides no basis for the Court to disturb
the ALJ’s conclusions. Any conflict between the record evidence and the testimony offered
by Plaintiff and his wife was for the ALJ to resolve, and it is not the Court’s place to
“undertake to re-weigh the conflicting evidence, make credibility determinations, or substitute
[its] judgment for that of the [ALJ].” Hays, 907 F.2d at 1456.
The same is true of Plaintiff’s claim that the ALJ erroneously found Plaintiff’s
schizophrenia fails to satisfy the criteria set forth in 20 CFR part 404, subpart P, appendix 1,
section 12.03B. See Tr. 14. Here as well, the ALJ cited specific record evidence to support his
conclusion that Plaintiff suffers only “moderate” functional limitations, as opposed to the
“marked” limitations required by the regulation.3 See id. This conclusion is further bolstered
by the thorough findings set forth in the ALJ’s discussion of Plaintiff’s residual functional
capacity. See Fischer-Ross v. Barnhart, 431 F.3d 729, 735 n.5 (10th Cir. 2005) (noting that
“courts have upheld [the determinations of an ALJ regarding one step in the disability
analysis] on the basis of evidence and findings set out in connection with other steps in the

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A limitation is only “marked” if it is “more than moderate,” although it need not be “extreme.” Myers v.
Colvin, 721 F.3d 521, 525 (8th Cir. 2013).

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analysis”); see also Smith v. Astrue, 457 F. App’x 326, 328 (4th Cir. 2011).
Plaintiff further argues that even if he retains some residual capacity to work, the
ALJ’s determination that Plaintiff is able to work “at all exertional levels” is insupportable
given Plaintiff’s age and weight. Plaintiff asserts that, for example, Plaintiff may not be able
to “perform very heavy work.” Pl. Rep. 1. The ALJ, however, found that Plaintiff is not
disabled within the meaning of the Social Security Act based on expert testimony that “[t]here
would be many jobs” available to Plaintiff at all exertional levels. Tr. 67-68. Whether Plaintiff
is able to perform “very heavy work” therefore has little bearing on the ALJ’s decision, and so
is immaterial to the question now before the Court. Regardless, as Plaintiff’s counsel
acknowledged at the hearing on this matter, Plaintiff failed to adduce any evidence of physical
limitations that would affect his ability to work. Hrg. Audio 10:20:58. Plaintiff’s recent
assertion that his age and weight may cause such limitations cannot take the place of
evidence. This is especially true given that the record indicates Plaintiff is physically able; as
the vocational expert noted at the administrative hearing, Plaintiff continued to perform work
at a “medium” to “heavy” capacity even after the onset of his alleged disability. Tr. 66.
Finally, Plaintiff argues that the ALJ failed to adequately address the issue of
Plaintiff’s obesity. Plaintiff reasons that because the ALJ found Plaintiff’s obesity is a
“severe” impairment, the ALJ was required to explore whether it limits Plaintiff’s physical
capacity to work. This argument, however, conflates the distinct legal issues of whether
Plaintiff’s impairment is “severe” and what impact it has on Plaintiff’s residual capacity. At
the administrative stage, Plaintiff bore the burden of proof on both issues. Asked at the
hearing held on this matter whether Plaintiff had introduced any evidence showing that
Plaintiff’s obesity limits his physical capacity to work, Plaintiff’s counsel conceded that “the

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record is barren” of such evidence. Hrg. Audio 10:20:58. Again, the record tends to show that
Plaintiff’s physical capacity is largely unimpaired, and that Plaintiff is capable of relatively
demanding physical labor. Given the above, the ALJ offered sufficient explanation by noting
that Plaintiff’s “relatively benign physical examinations . . . belie allegations of disabling
symptoms or functional limitations.” Tr. 20.
One issue raised in Plaintiff’s brief merits some additional discussion. While the ALJ
found that Plaintiff’s recent work history undermines his claim of disabling symptoms, see
Tr. 20, Plaintiff points out that one could easily draw a different inference: that having been
fired from so many jobs demonstrates that Plaintiff’s disability prevents him from retaining
employment. This is a fair point. “A finding that a claimant is able to engage in substantial
gainful activity requires more than a simple determination that the claimant can find
employment and that he can physically perform certain jobs; it also requires a determination
that the claimant can hold whatever job he finds for a significant period of time.” Singletary v.
Bowen, 798 F.2d 818, 822 (5th Cir. 1986). The record does in fact show that Plaintiff was
unable to retain employment as a carpenter for any significant length of time.
That does not mean, however, that Plaintiff would be unable to maintain other
employment for a significant period of time. Plaintiff reported that he had been fired due to
“the quality of [his] work” as a carpenter, and for not being “productive enough.” Tr. 41. As
to Plaintiff’s productivity, Plaintiff stated that he retained the capacity to “build[ ] about one
staircase an hour,” even if that “wasn’t quite enough” for one employer. Id. Moreover,
Plaintiff testified that, shortly before the administrative hearing, he lost his job of five months
not due to his disability but “[b]ecause [he] made $3.00 more an hour than the guy that they
hired after [him],” and “they just d[id]n’t have enough work to keep everybody busy.” Tr. 50.

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Indeed, Plaintiff himself expressed a belief that he might successfully retain “less demanding”
work than carpentry. Tr. 51. This appears consistent with the mild functional limitations
suggested by Plaintiff’s medical records. In short, the Court is unable to say that, given the
record in this case, Plaintiff’s work history proves that Plaintiff is unable to retain
employment.
IV.

Conclusion

While Plaintiff’s situation is a difficult one, it is not the Court’s role to substitute its
own view of the evidence for that of the ALJ. With that in mind, the Court will deny
Plaintiff’s Motion for Summary Judgement, grant Defendant’s Motion for Summary
Judgment, and affirm the decision of the Social Security Administration denying Plaintiff’s
application for disability insurance benefits. An appropriate order will issue.

/s/
Michael S. Nachmanoff
United States Magistrate Judge
March 28, 2016
Alexandria, Virginia

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