Greifenstein v. Colvin

Filing 18

OPINION AND ORDER the Court ACCEPTS the R&R; AFFIRMS the decision of the Commissioner of the Social Security Administration; DENIES Plaintiffs Motion for Summary Judgment; and GRANTS Defendant's Motion for Summary Judgment. Signed by District Judge Robert G. Doumar and filed on 1/15/2014. (rsim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

ROBERT GREIFENSTEIN,
Plaintiff,
v.

CIVILNO,2:13cv81

CAROLYN W. COLVIN,

Acting Commissioner,
Social Security Administration,
Defendant.

OPINION AND ORDER

This matter comes before the Court on Plaintiff Robert Gerifenstein's Objection to
Magistrate Judge Lawrence Leonard's Report and Recommendation ("R&R"). For the reasons
set forth herein, the Court: (1) ACCEPTS the R&R; (2) AFFIRMS the decision of the

Commissioner of the Social Security Administration ("Defendant"); (3) DENIES Plaintiffs
Motion for Summary Judgment; and (4) GRANTS Defendant's Motion for Summary Judgment.
I.

PROCEDURAL BACKGROUND

Plaintiff filed his application for DIB on December 12, 2011, alleging that he became

disabled and unable to work as of January 1, 2010. R. 179-80.' Plaintiffs date last insured
("DLI") was December 31, 2010. Therefore, he was required to establish disability on or before
that date in order to be entitled to a period of disability and disability insurance benefits. See R.
17. His application was initially denied on April 2, 2013, R. 109-118, and denied again upon

1"R." refers to thecertified administrative record that was filed under seal on April 26,2013, pursuant to Local
Civil Rules 5(B) and 7(C)(1). At the ALJ hearing, Plaintiff amended the onset date of disability to July 28, 2010.

reconsideration on May 10, 2012. R. 119-29. On May 23, 2012, Plaintiff requested a hearing in
front of an administrative law judge ("ALJ"), R. 151-52, which was held on November 13,

2012.2 R. 32-75. The ALJ issued his decision on November 30, 2012 denying Plaintiffs DIB
claim. R. 14-31. The Appeals Council for the Office of Disability and Adjudication ("Appeals
Council") denied Plaintiffs request for review of the ALJ's decision on January 23, 2013. R. 1-

5. After exhausting his administrative remedies, Plaintiff filed his complaint for judicial review

of the Acting Commissioner's final decision on February 15, 2013. ECF No. 3. The Acting
Commissioner filed an Answer on April 26,2013, ECF No. 6.
After the matter was referred to the magistrate judge, the parties filed their respective

motions for summary judgment. The R&R was entered on November 6, 2013, finding in favor
of the Defendant. Plaintiff filed his objection to the R&R on November 19, 2013, and Defendant
filed its reply to the objection on December 3, 2013.
II.

FACTUAL BACKGROUND

In his application, Plaintiff alleged a disability onset date of January 1, 2010. R. 179. At
the ALJ hearing, Plaintiff, through counsel, amended the onset date to July 28, 2010. R. 36-39.
As of that date, he was a 60 year-old male who last worked in 2005 as a hearse driver for a
funeral company. R.39. Prior to that, Plaintiff drove a limousine, and worked for twenty-seven

years as a maintenance director for the port of New York, and as a maintenance director for St.
John's University in New York City. At the ALJ Hearing held on November 13, 2012, Plaintiff
was represented by counsel, and the ALJ took testimony from Plaintiff and an independent
Vocational Expert ("VE"). Plaintiff provided the following testimony upon examination by the
ALJ and his own attorney:

2Plaintiff appeared with counsel, and the ALJ also took testimony from an impartial vocational expert ("VE"). R.
32-75.

Plaintiff last worked in 2005 as a driver for a funeral company and prior to that, he

worked as a director of maintenance operations for 27 years in New York. R. 39-40. He has

always battled alcoholism, but remained sober for three years from 2007 until 2010. R. 52-53.
In 2010, Plaintiff noted trouble with arterial fibrillation (rapid heartbeat), a lack of short-term

memory, R. 44-45, and specifically in September of that year, edema/swollen ankles that
affected his ability to walk and maintain balance. R. 47-48. Plaintiff also discussed "age-related

brain atrophy .... a more recent diagnosis," that resulted in a loss of sensation on the right side
of his body, including his face, hands, fingers, arm, and leg. R. 44-45.
Plaintiff reported that in May of 2011, after his date last insured of December 31, 2010,
he fell and broke his left arm, which still requires another surgery. R. 54-55. After coming out

of a ten-day coma, Plaintiff endured a five-month period of what he described as "house arrest..

. with this contraption on my arm," which eventually led to an alcohol relapse on September 6,
2011. R 54-55. As a result, his depression worsened and he self-medicated by abusing alcohol.

Id. Plaintiff started to see psychiatrist Dr. Parker after this relapse, who changed Plaintiffs

medication and began treating some of his mental health issues, which "changed [his] life." R.
57-58.

Specifically, Plaintiff reported diagnoses of "troubling dreams" and depression that stem

from his days as a maintenance director on the New York marine terminal, where he alleged
continuous interaction with organized crime syndicate associates, who regularly threatened him
and his family. R. 49-50. He reported that as of December 9, 2010, he found Benadryl to be a
helpful sleeping aid over Trazodone, and subsequently reported finding "the right medication"

for sleeping. Id. Previously, as of July 20, 2010, Plaintiff told his primary care physician Dr.
Gaglione that he was not experiencing anxiety, panic attacks, depression, or suicidal ideation,

except as noted, plus the chronic insomnia discussed above, which was treated through various
medications. R. 65. Lastly, Plaintiff also testified to kidney issues resulting in urinary problems
and six to seven melanomas that had been removed between 2010 and 2012. R. 52.

In step two of his analysis, the ALJ found that during the period at issue, from January 1,
2010 until December 31, 2010, Plaintiff had only two severe impairments: obesity and residual

effects of status post lower extremity fracture, which would have more than a minimal effect on
his ability to do basic work related functions.
determined to be non-severe.

R. 19-20.

R. 19. All other alleged limitations were

Specifically, in evaluating Plaintiffs mental

impairments, including his affective disorder and substance use disorder, the ALJ considered the
four broad functional areas set out in section 12.00C of the Listing of Impairments, 20 C.F.R.,

Part 404, Subpart P, App. 1: (1) activities of daily living, (2) social functioning, (3)
concentration, persistence or pace, and (4) decompensation. R. 20. Overall, the ALJ found that
any limitations imposed by Plaintiffs alleged mental issues were mild, and therefore, not
significant enough to be considered a severe impairment that affected his ability to do basic work
functions. On or before the date last insured, the evidence showed that Plaintiff could meet his

own personal needs, prepare simple meals, and perform routine chores. He had mild difficulties
with social functioning, but indicated and reported no change due to his depression, and he could

get along with authority figures. While Plaintiff reported handling stress and changes of routine
poorly and that he had a short attention span, there was no evidence in the record to support this
allegation on or before December 31, 2010. During that time, the ALJ found that any mental
disorders were "controlled with medications ... [that his] affect was within normal limits, he did

not feel drowsy while driving, he had no anxiety, no panic attacks, depression or suicidal
ideations," with no episodes of decompensation. R. 20. Therefore, the ALJ concluded that any

medically determinable mental impairments were non-severe.

Id. (citing 20 C.F.R. §

404.1520a(d)(l)).

Subsequently, the ALJ found that Plaintiffs medically determinable impairments
(obesity and residual effects from the lower extremity fracture) could reasonably be expected to

cause the alleged symptoms, but that statements concerning the intensity, persistence and
limiting effects of these symptoms were not credible to the extent they were inconsistent with his
RFC assessment. R. 22-23. Specifically, the ALJ relied on, and summarized, medical reports
from treating physicians at First Colonial Medical Associates and NowCare Medical Center

between July 2010 and May 2012. R. 23 (citing 367-412, 527-70). The ALJ assigned only little
weight to treating physician Dr. Parker's June 25, 2012 retroactive opinion that Plaintiff "had
been mentally unable to work since December 31, 2010 and that he suffers with a complexity of

physical disabilities . .. because it goes to the ultimate issue reserved for the Commissioner and
it is unsupported by the evidence of record on and before the claimant's date last insured." R. 23
("Progress notes clearly support no anxiety, panic attacks, depression or suicidal ideation.").
Similarly, the ALJ assigned little weight to treating physician Dr. Gaglione's January 4, 2012

retroactive opinion that Plaintiff "has multiple problems and limitations that have been present at
least since December 31, 2010," because it was partially based on diagnoses after the date last
insured as well. R. 24. Lastly, the ALJ gave no weight to Judith Anapol's January 16, 2012
opinion because she was not an acceptable medical source. Id.
Instead, the ALJ gave great weight to the medical source opinions made by nonexamining state agency medical consultants, in accordance with 20 CFR §§ 404.1527(f);
416.927(f). Id. (110-18, 120-29). The state agency consultants determined that Plaintiff was
capable of light work with occasional postural movements. Id. Overall, after consideration of

the entire record, the ALJ determined that Plaintiff had the RFC to perform less than the full

range of light work, and that, specifically, Plaintiff was able to lift, carry, push and pull up to 20
pounds occasionally and 10 pounds frequently, with a sit/stand option that avoided climbing
ladders, ropes and scaffolds, although he would be able to perform other postural movements on
an occasional basis.

III.

LEGAL STANDARD

Pursuant to the Federal Rules of Civil Procedure, the Court reviews de novo any part of a

Magistrate Judge's recommendation to which a party has properly objected. Fed. R. Civ. P.
72(b)(3). The Court may then "accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions." Id.

In reviewing a decision of the Commissioner denying benefits, the Court is limited to

determining whether the decision was supported by substantial evidence on the record and
whether the proper legal standard was applied in evaluating the evidence. 42 U.S.C. § 405(g);
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam); Hays v. Sullivan, 907 F.2d

1453, 1456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consol. Edison Co. ofN.Y. v. NLRB, 305 U.S. 197, 229 (1938)). It 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).

The Court does not undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the Commissioner. Craig v. Chater, 76 F.3d

585, 589 (4th Cir. 1996); Hays, 907 F.2d at 1456. "Where conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled, the responsibility for that

decisions falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)." Craig, 76

F.3d at 589. The Commissioner's findings as to any fact, if supported by substantial evidence,
are conclusive and must be affirmed. Perales, 402 U.S. at 390. Thus, reversing the denial of

benefits is appropriate only if either the ALJ's determination is not supported by substantial
evidence on the record, or the ALJ made an error of law. Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987).
IV.

DISCUSSION

In so far as the findings of the R&R are not objected to they are directly adopted and
affirmed as set forth in the R&R.

Plaintiffs objection to the R&R centers around his assertion that the case of Ladson v.
Aslrue, No. 4:11-2565, 2013 WL 655971 (D.S.C. Feb. 22, 2013), should have been addressed by

the magistrate judge and should have led to a finding in the Plaintiffs favor. Ladson held,
among other things, that an"ALJ's failure to consider the report by [a treating physician] because
it was after the DLI was error and the case should be remanded to allow the retrospective

consideration of these medical records and opinion." 2013 WL 655971, at *8. That court found
that such a remand was warranted under the "inference of linkage standard set forth in Bird v.

Commissioner of Social Sec. Admin., 699 F.3d 337 (4th Cir.2012), which held that "the
retrospective consideration of evidence is appropriate when the record is not so persuasive as to

rule out any linkage of the final condition of the claimant with his earlier symptoms." Bird, 699
F.3d at 341 (quotation marks and citation omitted).

The R&R correctly addressed this case in relation to Bird (and by extension, Ladson).
The ALJ in Plaintiffs case assigned little weight to the post-DLI opinions of Dr. Gaglione and
Dr. Parker. The difference between this case and the cases of Bird and Ladson is that the record

is persuasive enough to rule out an "inference of linkage." In fact, the pre-DLI evidence weighs
against a finding of linkage. Dr. Gaglione himself was the Plaintiffs treating physician during

that period, and yet he repeatedly documented less than severe symptoms. It was not until well
after Plaintiffs DLI that Dr. Gaglione then amended his more severe diagnosis to include preDLI dates. It is clear that the conclusory opinions of Dr. Gaglione and Dr. Parker suffer from a

serious lack of any substantive support in so far as they asserted that Plaintiffs pre-DLI
condition prevented him from working.

To read Bird to hold that post-DLI medical opinions can, in and of themselves and
without any meaningful corroboration by pre-DLI evidence, create an inference of linkage is
untenable. In both Bird and Ladson there was corroborating evidence, in addition to the post-

DLI opinions that the ALJ's disregarded, that could have supported a finding in favor of the

respective plaintiffs in those cases.
inference of linkage.

It was that corroborating evidence that provided the

Therefore, since the pre-DLI evidence actually weighs against any

inference of linkage there was no error on the part of Magistrate Judge Miller in not remanding

this case pursuant to Bird and Ladson. Any such inference of linkage was ruled out by the
record.

For the reasons set forth herein, the Court: (1) ACCEPTS the R&R; (2) AFFIRMS the
decision of the Commissioner of the Social Security Administration ("Defendant"); (3) DENIES

Plaintiffs Motion for Summary Judgment; and (4) GRANTS Defendant's Motion for Summary
Judgment.

The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
IT IS SO ORDERED.
Robert G. Dour,

Senior United S^kMstrict Judge
UNITED STATES DISTRICT JUDGE

C'X^

Norfolk,
January' |~^2014
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