Jasmin v. Kijakazi

Filing 19

MEMORANDUM OPINION: The Court adopts the Magistrate Judge's Report and Recommendation. Accordingly, this Court overrules Plaintiff's objections, denies Plaintiff's Motion for Summary Judgment, and affirms the decision of the Commissioner. Signed by District Judge Elizabeth W. Hanes on 3/26/24. (epri, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division FREDERICK C. J., Plaintiff, v. Civil Action No. 2:22-cv-562 MARTIN O’MALLEY,1 Commissioner of Social Security, Defendant. MEMORANDUM OPINION This is an action seeking review of a decision by the Commissioner of Social Security (“Commissioner”) denying the application of Frederick C. J. (“Plaintiff”) for disability insurance benefits under the Social Security Act. On November 8, 2023, Magistrate Judge Robert J. Krask issued a Report and Recommendation (“R&R”) on Plaintiff’s Motion for Summary Judgment recommending that the Court deny Plaintiff’s motion and affirm the decision of the Commissioner. R&R, ECF No. 16. Plaintiff’s objection to the R&R relates to the Administrative Law Judge’s (“ALJ”) consideration of a medical opinion offered by Plaintiff’s treating therapist, Fredric Bricka, L.C.S.W. The ALJ found Bricka’s opinion not persuasive. Plaintiff argues that the ALJ and Magistrate Judge mischaracterized the record and failed to adequately explain their finding that Bricka’s medical evaluation report was unsupported, thus improperly determining Plaintiff’s residual functional capacity. Pl.’s Obj. at 1–3, ECF No. 17. For the reasons below, the Court will adopt the R&R and overrule Plaintiff’s objection. On December 20, 2023, Martin O’Malley became the Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Commissioner Martin O’Malley for former Acting Commissioner Kilolo Kijakazi in this matter. 1 I. PROCEDURAL HISTORY On October 11, 2018, Plaintiff filed an application for disability insurance benefits alleging disability beginning September 7, 2018. R. 15. Plaintiff’s claim was denied both initially and on reconsideration. R. 1–3, 12–26. On April 13, 2022, the ALJ held a hearing at which Plaintiff and a vocational expert testified. R. 32–56. The ALJ determined that Plaintiff was not disabled, and Plaintiff appealed the decision to the Appeals Council. R. 1–7, 12–26. On October 26, 2022, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. R. 1–7. The ALJ’s decision is the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. §§ 405(h), 1383(c)(3); 20 C.F.R. § 404.981. On December 28, 2022, Plaintiff filed a complaint in this Court, appealing the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). Compl., ECF No. 1. The Court referred the matter to the Magistrate Judge for an R&R pursuant to 28 U.S.C. § 636(b)(1)(B). Order, ECF No. 5. Plaintiff filed a motion for summary judgment. Mot. Summ. J., ECF No. 11. The Commissioner opposed Plaintiff’s motion for summary judgment, and Plaintiff replied. Def.’s Br., ECF No. 14; Pl.’s Reply, ECF No. 15. Upon review, the Magistrate Judge recommended that the Court deny Plaintiff’s motion for summary judgment and affirm the decision of the Commissioner. R&R at 1, 32. Plaintiff timely objected to the R&R, to which the Commissioner responded. Pl.’s Obj., ECF No. 17; Def.’s Resp., ECF No. 18. II. STANDARD OF REVIEW This Court reviews de novo any part of the Report and Recommendation to which a party has properly objected. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). The Court “may accept, reject, or modify, in whole or in part,” the Magistrate Judge’s recommended disposition. 28 U.S.C.§ 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). 2 This Court will uphold an ALJ’s Social Security disability determination if “(1) the ALJ applied the correct legal standards and (2) substantial evidence supports the ALJ’s factual findings.” Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020) (citing 42 U.S.C. § 405(g) and Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). “Substantial evidence is that which ‘a reasonable mind might accept as adequate to support a conclusion.’” Pearson, 810 F.3d at 207 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam)). Substantial evidence thus requires “more than a mere scintilla of evidence but may be less than a preponderance” of the evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (quoting Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996)). Between these two evidentiary thresholds lies a “zone of choice” wherein the ALJ’s decision can go either way without interference by the courts. See Dunn v. Colvin, 607 F. App’x 264, 266 (4th Cir. 2015) (quoting Clarke v. Bowen, 843 F.2d 271–73 (8th Cir. 1988)). “‘In reviewing for substantial evidence, we do not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute our judgment’ for the ALJ’s.” Arakas, 983 F.3d at 95 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). III. BACKGROUND A. Plaintiff’s Treatment History with Bricka2 Plaintiff suffers from anxiety and depression, as well as a number of other physical impairments.3 R. 18–19. Plaintiff testified that while his pain and associated difficulty sitting or standing for long periods made it difficult to work, his mental health impairments were the “biggest The Magistrate Judge’s R&R thoroughly details Plaintiff’s treatment history and the opinions of medical experts, and this Court adopts that description as its Statement of Facts. R&R at 2–13. The most pertinent portions of that history are summarized here. 2 Plaintiff’s physical impairments include diabetes, atherosclerotic heart disease, degenerative lumbar spinal stenosis, hypertension, high blood pressure, mild sleep apnea, mild emphysema, mild osteoarthritis, and iron deficiency anemia. See R. 18. 3 3 reason” preventing him from working. R. 41, 45. He reported depression every day, as well as constant anxiety that was exacerbated by work or confrontational issues. R. 45, 51–52. Fredric Bricka was Plaintiff’s treating therapist and regularly met with Plaintiff between September 2017 and March 2022. R. 662–63, 1549–54. During the course of this treatment, Plaintiff discussed the stressors that contributed to his anxiety and depression. See, e.g., R. 711–13, 721–22, 841–43. Among other factors, frequent stressors included Plaintiff’s marital frustrations, his physical limitations, his worries about money, the stress of having his schizophrenic adult son living at home, and the significant amount of time Plaintiff spent watching the news. See, e.g., R. 680, 682, 690, 692, 1657, 1660. Plaintiff’s wife also reported that he suffered from suicidal ideation on one occasion. R. 842. B. Bricka’s Medical Evaluation Report Bricka completed a mental functional capacities assessment, which consisted of a checkbox form in which the provider could assess whether certain functional capacities were limited and if so, whether such limitation was mild, moderate, marked, or extreme. R. 1016–17. Bricka indicated that Plaintiff exhibited “extreme” limitations4 in the following areas: understanding and remembering detailed instructions; carrying out detailed instructions; maintaining attention and concentration for extended periods; working in coordination with or proximity to others without being distracted by them; completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; interacting appropriately with the general public; asking simple questions or requesting assistance; responding appropriately to Extreme limitation is defined to mean a “[d]egree of limitation that is incompatible with the ability to do any gainful activity.” R. 1016. 4 4 customary stresses in a work setting; and setting realistic goals or making plans independently of others. Id. Bricka also noted that Plaintiff had “marked” limitations5 in the following areas: remembering locations and work-like procedures; understanding and remembering short and simple instructions; carrying out very short and simple instructions; sustaining an ordinary routine without special supervision; making simple work-related decisions; and traveling in unfamiliar places or using public transportation. Id. For the remaining questions, Bricka indicated Plaintiff suffered moderate to no limitations. Id. Bricka also provided a supplemental comment elaborating on his assessment. R. 1018–19. Bricka indicated that Plaintiff was a long-term client who received psychotherapy services. R. 1018. While Bricka initially treated Plaintiff for depression and anger, this “quickly escalated into a weaving of other issues” including social anxiety, marital issues, communication, and the effects of his back pain. Id. Bricka described certain aspects of Plaintiff’s physical impairments. Id. He noted that the root of Plaintiff’s mental health issues appeared to be Plaintiff’s back injury and associated pain. Id. Bricka also explained that he became aware of Plaintiff’s past suicidal ideation and has since been actively monitoring Plaintiff’s mood. R. 1019. C. The ALJ and Magistrate Judge’s Assessment of Bricka’s Opinion The ALJ found that Plaintiff’s anxiety and depression caused no more than a “mild” limitation in any of the functional areas and that the evidence did not indicate that Plaintiff’s mental impairments would impose more than a “minimal limitation” on Plaintiff’s ability to perform basic work activities. R. 19–20. The ALJ determined that the opinions set forth in Bricka’s medical evaluation report were “not at all persuasive.” R. 24. The ALJ found that Bricka’s supplemental Marked limitation is defined to mean the “[p]atient has serious limitation in this area but function is not completely precluded.” R. 1016. 5 5 comment did not support his opinion that Plaintiff suffered from marked to extreme limitations. Id. The ALJ noted that the comment discussed Plaintiff’s physical health issues, a “matter[] [Bricka] does not treat,” and Plaintiff’s “marital discord, an issue unrelated to work-related functional abilities.” Id. The ALJ found that the remaining statements in the comment did not support marked or extreme limitations. Id. For example, Bricka “described the claimant as shy and passive, descriptors that are insufficient to support marked and extreme social limitations.” Id. Similarly, Bricka identified that Plaintiff suffered from an instance of suicidal ideation, but that he “did not identify any recurrence of such thoughts.” Id. The ALJ also found that Bricka’s treatment records “clearly do not support marked or extreme limitations; they do not even support moderate limitations.” Id. From a review of Bricka’s treatment notes, the ALJ noted that the records focused on Plaintiff’s daily stressors and that the records “do not really describe psychiatric symptoms having any bearing on work-related mental abilities.” Id. The ALJ found that “[Plaintiff] does not report any particular depressive symptoms or anxious symptoms, such as panic attacks, anhedonia, poor energy, poor sleep, irritability, or racing thoughts.” Id. Further, the ALJ noted that Bricka remarked on Plaintiff’s lack of symptoms several times. Id. The ALJ observed that Bricka identified Plaintiff as suffering from “dysphoric mood.” Id. However, the ALJ found that this “often conflict[ed] with [Bricka’s] narrative description of the [Plaintiff] as upbeat and positive.” Id. The ALJ also noted that Plaintiff “never presented with or complained of any acute symptoms” and “has not needed any emergency treatment.” Id. While the ALJ determined that Bricka’s medical evaluation report was not persuasive and that the evidence indicated Plaintiff’s mental impairments were non-severe, the ALJ included a 6 social restriction to Plaintiff’s residual functional capacity out of “deference” to Plaintiff.6 R. 25. The ALJ ultimately found that Plaintiff was capable of performing his past relevant work as a Logistics Specialist and therefore he was not under a disability as defined by the Social Security Act. R. 25–26. The Magistrate Judge reviewed the ALJ’s determination and concluded that the ALJ appropriately considered the persuasiveness of Bricka’s opinions. R&R at 19–29. Specifically, the Magistrate Judge found that the “ALJ correctly recognized that the medical source statement offered little to no reasoning to support Bricka’s opinion[] that [P]laintiff ha[d] marked to extreme mental limitations.” Id. at 20. The Magistrate Judge then considered the ALJ’s assessment of Bricka’s treatment records and found that the ALJ appropriately determined that they too did not support Bricka’s finding of marked or extreme mental limitations. Id. at 20–25. The Magistrate Judge recommended that Plaintiff’s motion for summary judgment be denied and the ALJ’s decision be affirmed. Id. at 32. IV. ANALYSIS Plaintiff’s objection focuses on the ALJ’s conclusion that Bricka’s medical opinion was not persuasive. Plaintiff argues that the ALJ and Magistrate Judge relied upon “mischaracterizations of the record” in determining that Bricka “regularly opined that plaintiff presented as upbeat during treatment.” Pl.’s Obj. at 1–2. Plaintiff also contends that the ALJ and Magistrate Judge failed to adequately explain their reasoning for discounting the supplemental comment submitted by Bricka. Id. at 2–3. The Court has conducted a de novo review of Plaintiff’s objection, below. To the extent that Plaintiff lodges objections the Court has not ascertained, the The ALJ restricted Plaintiff to “frequent interaction with coworkers, supervisors, and the public.” R. 25. 6 7 Court has reviewed the remainder of the R&R for clear error. See Lee v. Saul, No. 2:18cv214, 2019 WL 3557876, at *1 (E.D. Va. Aug. 5, 2019). Plaintiff first asserts that both the ALJ and Magistrate Judge mischaracterized Bricka’s treatment records. Plaintiff argues that Bricka’s treatment records indicate that “Plaintiff repeatedly presented as dysphoric, upset, frustrated, dejected, depressed, and tired” and that Plaintiff continued to exhibit these symptoms for four years despite therapeutic interventions. Pl.’s Obj. at 2. Plaintiff contends that the ALJ and Magistrate Judge ignored these records in concluding that Plaintiff did not suffer marked or extreme limitations to his work-related mental abilities. Id. Plaintiff argues that “an unbiased review of the record reveals that LCSW Bricka’s examinations of Plaintiff actually identified numerous psychiatric abnormalities.” Id. When evaluating a medical opinion, an ALJ “must build an accurate and logical bridge from the evidence to [her] conclusion.” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)); see also Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (explaining the “assessment must include a narrative discussion describing how the evidence supports each conclusion” (quoting Social Security Ruling 96–8p)). In reaching her conclusion, the ALJ must consider “all relevant medical evidence” and is prohibited from “cherrypick[ing] facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas, 983 F.3d at 99, 102 (finding error when the ALJ misstated or mischaracterized facts). The Court concludes that neither the Magistrate Judge nor the ALJ mischaracterized Plaintiff’s treatment records. Both noted Bricka’s report of Plaintiff’s mental health symptoms, including those that supported a finding of disability. R. 19–20 (summarizing Plaintiff’s subjective 8 complaints); R&R at 6–7 (considering Bricka’s treatment notes that describe Plaintiff as “presenting in a fairly upset mood or in a ‘dejected and depressed’ manner” on several occasions and that Bricka often assessed Plaintiff’s mood as “dysphoric”). Both the ALJ and Magistrate Judge explained why Bricka’s positive and negative observations did not support a finding of disability. For example, both found that Bricka’s assessment of Plaintiff’s dysphoric mood conflicted with Bricka’s frequent finding that Plaintiff appeared “upbeat and positive.” See R&R at 22 (citing R. 19, 24, 1576–77) (noting that Bricka described Plaintiff as “upbeat and positive” for “66 of the 76 therapy sessions for which there are treatment notes in the record”). Similarly, both recognized that while Plaintiff dealt with several stressors that exacerbated his mental health challenges, there was little documented evidence indicating that those symptoms impacted Plaintiff’s “work-related mental abilities.” Id. at 20 (citing R. 20, 24). The facts referenced to discount Bricka’s opinions were accurate and representative of the record as a whole. Finally, the existence of evidence that could support a conclusion different from the one reached by the ALJ is not grounds for reversal if the ALJ’s findings are supported by substantial evidence. Arakas, 983 F.3d at 95. After de novo review of the relevant portions of the record, the Court finds that the ALJ and Magistrate Judge accurately characterized Bricka’s treatment records, that the ALJ weighed conflicting evidence, and that the ALJ’s determination that Bricka’s medical opinion was not persuasive was supported by substantial evidence. Next, Plaintiff argues that the Magistrate Judge and ALJ rejected the medical evaluation report because Bricka included a summary of Plaintiff’s physical ailments, ailments that the Magistrate Judge and ALJ observed that Bricka “did not treat.” Pl.’s Obj. at 3. Plaintiff maintains that “neither the Magistrate Judge nor ALJ provides an adequate explanation as to how LCSW Bricka’s mere summary of Plaintiff medical evidence renders his mental assessment 9 unpersuasive.” Id. Plaintiff’s argument misses the point. Neither the ALJ nor the Magistrate Judge concluded that the inclusion of physical ailment was the reason the opinion was unpersuasive. Rather, the ALJ and the Magistrate Judge were merely observing that Bricka’s summary of Plaintiff’s physical ailments in the supplemental comment was not objective evidence that supported findings related to Plaintiff’s mental health. These observations, along with the other reasons provided by the ALJ in finding that the medical source statement did not support the mental functional capacity assessment, are easily traceable and supported by the record. Plaintiff also argues that the ALJ and Magistrate Judge failed to explain how they considered “the correlating relationship between Plaintiff’s physical impairments and his mental impairments.” Pl.’s Obj. at 3. But Bricka’s supplemental comment simply notes that Bricka’s mental health treatment of Plaintiff included “[e]ffects of [his] back pain” and that the origin of Plaintiff’s depression was Plaintiff’s back injury and associated pain. R. 1018. Nor does Bricka discuss a correlating relationship between Plaintiff’s physical and mental impairments in any part of the record cited by Plaintiff. See R. 1621, 1628, 1657, 1660. Plaintiff’s argument unfairly criticizes the ALJ for failing to consider a point not raised by Bricka. To the extent that Plaintiff is arguing that the ALJ or Magistrate Judge failed to consider the interplay between Plaintiff’s mental and physical health issues, both noted the interrelated nature of these issues. R&R at 7, 25 (noting that Plaintiff’s “various health issues” were a stressor, among several, that contributed to Plaintiff’s anxiety and depression, and then discussing the ALJ’s analysis of those stressors); R. 21–22 (considering Plaintiff’s physical and mental health limitations in combination). The Court finds that the ALJ appropriately analyzed Plaintiff’s physical and mental impairments, both individually and in combination, when determining Plaintiff’s residual functional capacity, R. 20–25, and that the ALJ’s determination is supported by substantial evidence. 10 Having reviewed the record, and for the reasons stated above and in the Magistrate Judge’s R&R, the Court finds that substantial evidence supports the ALJ’s evaluation of the medical opinion evidence and determination of Plaintiff’s residual functional capacity. V. CONCLUSION The Court adopts the Magistrate Judge’s Report and Recommendation. Accordingly, this Court overrules Plaintiff’s objections, denies Plaintiff’s Motion for Summary Judgment, and affirms the decision of the Commissioner. An appropriate order shall issue. /s/ Elizabeth W. Hanes United States District Judge Norfolk, Virginia Date: March 26, 2024 11

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