Beavers v. Astrue

Filing 20

OPINION. Signed by Judge James P. Jones on 5/2/11. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION

DARRELL R. BEAVERS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No. 1:10CV00040
OPINION
By: James P. Jones
United States District Judge

Gerald F. Sharp, Lebanon, Virginia, for Plaintiff; Eric P. Kressman,
Regional Chief Counsel, Region III, Alexander L. Cristaudo, Assistant Regional
Counsel, and Charles J. Kawas, Special Assistant United States Attorney, Office of
the General Counsel, Social Security Administration, Philadelphia, Pennsylvania,
for Defendant.
In this Social Security disability case, I affirm the final decision of the
Commissioner.

I
Plaintiff Darrell R. Beavers filed this action challenging the final decision of
the Commissioner of Social Security (“Commissioner”) denying his claim for
disability insurance benefits (“DIB”) and social security income (“SSI”) benefits
pursuant to Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C.A. §§

401-433, 1381-1383d (West 2003 & Supp. 2010). Jurisdiction of this court exists
pursuant to 42 U.S.C.A. §§ 405(g) and 1383(c)(3).
Beavers filed for benefits in September 2006, alleging disability since
November 15, 2005, due to a degenerating right shoulder rotator cuff, respiratory
issues, and depression. His claim was denied initially and upon reconsideration.
Beavers received a hearing before an administrative law judge (“ALJ”), during
which Beavers, represented by counsel, and a vocational expert (“VE”) testified.
The ALJ denied Beavers’ claim and the Social Security Administration’s Appeals
Council denied his Request for Reconsideration.1 Beavers then filed his Complaint
with this court, objecting to the Commissioner’s final decision.
The parties have filed cross motions for summary judgment and have briefed
and orally argued the issues. The case is ripe for decision.

II
Beavers was fifty-two years old when he filed for benefits, a person “closely
approaching advanced age” under the regulations. See 20 C.F.R. § 404.1563(d)
(2010). Beavers, who has a high school level of education and his GED, has

1

Upon rejection of his claims, Beavers reapplied, and was granted benefits. Thus,
the current appeal relates to Beavers’ claims for the bounded period of November 15,
2005,through the date of the ALJ’s decision on December 27, 2007.
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previously worked as a heavy equipment operator in the coal industry. Beavers has
not engaged in substantial gainful activity since June 2006.
Beavers alleges disability primarily due to a rotator cuff tear in his right
shoulder. He also suffers from osteoarthritis and respiratory problems. Since
August 2004, Beavers’ primary care has been provided by Samina Yousuf, M.D.,
and orthopedist, T. Lisle Whitman, M.D. Dr. Yousuf treated Beavers for an
extended period of years for shoulder pain, but after conservative options such as
rest, anti-inflammatory injections, and physical therapy failed to alleviate his
symptoms, Dr. Yousuf referred him for surgery. Dr. Whitman performed two
surgeries to repair tears in Beavers’ rotator cuff in November 2005 and August 2006.
Following the shoulder surgeries, Beavers presented to his treating physicians
for follow-up consultations. In late 2006 and early 2007, Beavers reported that his
shoulder felt better following surgery and examination showed improvement.
Although Beavers still lacked a full range of motion and experienced some
weakness, Dr. Whitman encouraged Beavers to increase his activities as tolerated
and report back for a follow-up evaluation in two months. Dr. Yousuf similarly
indicated that Beavers could return to work after his shoulder showed improvement.
The primary concern of both doctors was their worry that Beavers would be “over
aggressive” following surgery and that he risked re-tearing his repair if he overused

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his shoulder.

(R. at 280.)

Dr. Whitman ultimately concluded that Beavers’

shoulder was “stable,” but that further repair was unlikely to help him. (R. at 348.)
In November 2006, Dr. Yousuf completed a Medical Source Statement of
Ability to Do Work-Related Activities (Physical) form on Beavers’ behalf. Dr.
Yousuf opined that Beavers suffered from severe exertional limitations, including a
total inability to lift more than five pounds as a result of his rotator cuff tears or to
push or pull more than twenty pounds. Finally she noted that Beavers was in
“constant pain,” “losing strength,” and “markedly limited” in his range of motion.
(R. at 315.) Dr. Yousuf completed the same form in October 2007 and November
2007, reporting similar limitations to Beavers’ residual functional capacity.
Beavers also sought treatment for respiratory problems from Dr. Yousuf and
the Russell County Medical Center in 2006 and 2007. Examinations and testing
showed functional complications consistent with Beavers’ smoking habit, but no
diagnoses of significant impairments to Beavers’ residual functional capacity.
Through this period, Beavers’ record also contains complaints of mental
impairment.

In June 2006, Dr. Yousuf diagnosed Beavers with depressive

disorder, status improving. She later adjusted this diagnosis as a chronic, but
controlled depressive disorder, and prescribed medicative treatment. In September
2006, Beavers reported improvements to his mental state. However, according to

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his wife, Beavers’ depression thereafter worsened in the following months. Dr.
Whitman noted that Beavers’ depression was likely contributed to by situational
stressors related to Beavers’ shoulder and his employment situation, and that such a
reaction was to be expected under the circumstances.
In March 2007, Beavers sought a consultative evaluation of his
psychological status from Robert C. Miller, Ed.D, in support of his disability
application. Dr. Miller’s evaluation showed that Beavers suffered from poor sleep,
suicidal ideations, panic attacks, and feelings of worthlessness, triggered by his
inability to work. Although Dr. Miller found that Beavers’ ability to attend and
concentrate was impacted when emotionally upset, he also noted that Beavers was
generally logical, coherent, and cooperative.

Dr. Miller diagnosed major

depressive disorder — moderate, panic disorder without agoraphobia, and a GAF
score of 50. 2
In October 2006, Beavers’ records were reviewed by a state agency physician
and a state agency psychologist. Frank M. Johnson, M.D., completed a physical
2

The GAF scale is a method of considering psychological, social and occupational
function on a hypothetical continuum of mental health. The GAF scale ranges from 0 to
100, with serious impairment in functioning at a score of 50 or below. Scores between 51
and 60 represent moderate symptoms or a moderate difficulty in social, occupational, or
school functioning, whereas scores between 41 and 50 represent serious symptoms or
serious impairment in social, occupational, or school functioning. See Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).

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residual functional capacity assessment and noted limitations in Beavers’ ability to
occasionally and frequently lift and/or carry items over twenty pounds. He also
limited Beavers to standing or sitting for about six hours in an eight-hour workday,
and found Beavers to be limited in his upper extremities. Dr. Johnson found that
Beavers was partially credible, based on Beavers’ symptoms and his aggressive
pursuit of treatment. However, Dr. Johnson also noted that surgery had
“significantly improve[d]” Beavers’ symptoms, and that Beavers was not attending
physical therapy or using assistive devices for his condition.
E. Hugh Tenison, Ph.D., a state agency psychologist, reviewed Beavers’
medical records and found that Beavers’ suffered from the medically determinable
impairments of depressive disorder, non-specific, and sleep disturbance. Dr.
Tenison, however, found that these conditions resulted only in mild impairments in
Beavers’ abilities to maintain social functioning, concentration, persistence, and
pace, and no restrictions on his activities of daily living or periods of
decompensation. Dr. Johnson’s and Dr. Tenison’s assessments were substantially
confirmed by a second round of agency reviews conducted in February 2007.
After reviewing the record, the ALJ found that Beavers suffered from the
severe impairment of a right shoulder rotator cuff failure with two surgeries, but that
his allegations regarding his pain from this condition were not entirely credible.

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The ALJ further found that Beavers’ other alleged impairments, including his
complaints of depression and respiratory problems were not severe, as the record
contained insufficient evidence to show that they would have more than a minimal
effect on his ability to work. The ALJ noted that despite his claims of mental
impairment, Beavers never sought treatment from a mental-health professional and
that his symptoms were found to have improved with medicative treatment. Taking
Beavers’ severe impairments into account, the ALJ found that Beavers did not suffer
from an impairment or combination of impairments that would be at listing level.
The VE testified that someone with Beavers’ residual functional capacity,
age, and work history could perform a range of light level work in occupations such
as production inspector, parking cashier, and unarmed night guard. According to
the VE, there are approximately 19,500 jobs in the region and 195,000 jobs in the
national economy. Relying on this testimony, the ALJ concluded that Beavers was
able to perform work that existed in significant numbers in the national economy
and was therefore not disabled under the Act.
Beavers now challenges the ALJ’s unfavorable ruling, arguing that the
decision is not supported by substantial evidence. For the reasons detailed below, I
disagree.

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III
The plaintiff bears the burden of proving that he is under a disability.
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The standard for
disability is strict. The plaintiff must show that 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.A. § 423(d)(2)(A) (2010).
In assessing DIB and SSI claims, the Commissioner applies a five-step
sequential evaluation process. The Commissioner considers whether the claimant:
(1) has worked during the alleged period of disability; (2) has a severe impairment;
(3) has a condition that meets or equals the severity of a listed impairment; (4) could
return to past relevant work; and (5) if not, whether he could perform other work
present in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
(2010). If it is determined at any point in the five-step analysis that the claimant is
not disabled, the inquiry immediately ceases. Id.; McLain v. Schweiker, 715 F.2d
866, 868-69 (4th Cir. 1983). The fourth and fifth steps of the inquiry require an
assessment of the claimant’s residual functional capacity, which is then compared

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with the physical and mental demands of the claimant’s past relevant work and of
other work present in the national economy. Id. at 869.
This court’s review is limited to a determination of whether there is
substantial evidence to support the Commissioner’s final decision and whether the
correct legal standard was applied. 42 U.S.C.A. § 405(g); see Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). In accordance with the Act, I must uphold the
Commissioner’s findings if substantial evidence supports them and the findings
were reached through application of the correct legal standard. Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996). Substantial evidence means “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation marks and citation
omitted). This standard “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). It is the role of the ALJ to resolve evidentiary conflicts, including
inconsistencies in the evidence. It is not the role of this court to substitute its
judgment for that of the Commissioner. See Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990).
On appeal, Beavers argues that substantial evidence does not support the
ALJ’s ruling that he is not disabled under the Act. Specifically, Beavers argues that

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the ALJ failed to give proper weight to the opinion of Dr. Yousuf, failed to fairly
take into consideration Beavers’ mental impairments, and erred in finding that
Beavers’ claims were not entirely credible.
Beavers presented evidence of a long-term rotator cuff injury that has been
resistant to physical therapy, medicative treatment, and surgetical intervention.
Beavers also asserts nonexertional impairments related to depression, anxiety, and
difficulty sleeping. Beavers has been under consistent and long-term physical and
medicative care for his shoulder problems for many years and also has made some
complaints to his primary treating sources regarding secondary depression resultant
from his shoulder problems.

However, while Beavers’ shoulder injury has

obviously affected him, I cannot fault the ALJ’s finding that this injury did not
render him disabled as defined under the Act.
First, Beavers argues that the ALJ improperly accorded little weight to the
opinion of Dr. Yousuf. As a preliminary matter, this contention is not entirely
accurate. Reviewing the ALJ’s decision, it is clear that what the ALJ discredited
was not Dr. Yousuf’s findings in their entirety, but rather the conclusions she made
in her checklist medical source statements. (R. at 27.) The ALJ found that the
opinions in those checklists were inconsistent with Dr. Yousuf’s own treatment
records and those of Dr. Whitman. He specifically pointed to inconsistencies in Dr.

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Yousuf’s records where she found limitations in Beavers’ knees, hips, and
extremities, but which were not supported by her physical examinations of Beavers.
(Id. 27-28.)
A treating physician’s medical opinion will be given controlling weight when
it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (2010). However, the ALJ
has “the discretion to give less weight to the testimony of a treating physician in the
face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir.
2001). A medical opinion in the form of a checklist may be appropriately granted
less weight when it “lack[s] narrative substance to explain the severity of the
limitations found.” Berube v. Astrue, No. 6:10CV004, 2011 WL 824616, at *6
(W.D. Va. Feb. 3, 2011), adopted, 2011 WL 806520 (W.D. Va. Mar. 2, 2011).
In the present case, the ALJ may have accorded little weight to Dr. Yousuf’s
summary checklist conclusions, but it is clear that he accepted Dr. Yousuf’s findings
where they comported with the overall record. The ALJ carefully accommodated
Beavers’ limitations in his residual functional capacity assessment.

Although

Beavers’ shoulder injury limited his physical capacities, especially in regard to the
heavy skilled work that he formerly performed in the coal industry, substantial

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evidence shows that the injury did not prevent him from performing a range of a
light exertion work.
These facts also bear on Beavers’ contention that the ALJ erred in finding
Beavers’ claims less than fully credible. The ALJ noted that Beavers’ allegations
of a severely weakened arm and a highly restricted range of motion did not comport
with the overall record. The ALJ also noted that, in fact, Beavers returned to work
following his surgery, but that changes in his job duties and an unavailability of light
range work at his employer prompted Beavers to elect early work retirement. The
ALJ also noted that Beavers at one point expressed concern to Dr. Whitman that his
job requirements were changing and that his shoulder injury could affect his ability
to perform that work. Finally, the ALJ noted that Beavers continues to participate
in his daily living activities, including volunteering with his local emergency
response team. Given these facts, the ALJ questioned whether Beavers’ disability
claim was grounded in a total inability to work, or rather, an inability to continue in
the field in which Beavers has engaged for a substantial number of years.
I must grant the ALJ great deference regarding credibility determinations, and
here, I find that the ALJ’s assessment of Beavers’ claims of pain and functional
limitations is supported by substantial evidence on the record. I am sensitive to the
fact that Beavers has “worked most of [his] life in the coal industry” (R. at 336) and

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that his “good work history may be deemed probative of credibility.” See Schaal v.
Apfel, 134 F.3d 496, 502 (2d Cir. 1998). However, the standard of disability is
strict, and it is not solely determined by whether the claimant can perform the skills
of his prior employment. See SSR 82-41; 20 C.F.R. Pt. 404, Subpt. P, App’x 2.
For these reasons, I cannot overrule the ALJ’s assessment of Beavers’ credibility.
Finally, Beavers argues that the ALJ did not properly account for his mental
impairments. Like the ALJ, I note that Beavers never sought specialized mental
health treatment or pursued treatment beyond the minimal care provided by his
primary care physician.

Many of the complaints of depression contained in

Beavers’ record were actually made by Beavers’ wife, and not by Beavers himself.
Finally, the only formal evaluation Beavers sought was Dr. Miller’s one-time
consultative opinion, and even that opinion does not support a finding of severe
impairment.

Coupled with the ALJ’s questions regarding Beavers’ overall

credibility, I find that the ALJ was within his discretion to find that Beavers’ mental
impairments were not severe.
For all these reasons, I find that Beavers’ arguments are without merit and that
the ALJ’s ultimate determination as to Beavers’ disability status is supported by
substantial evidence in the record.

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IV
For the foregoing reasons, the plaintiff’s Motion for Summary Judgment will
be denied, and the defendant’s Motion for Summary Judgment will be granted. A
final judgment will be entered affirming the Commissioner’s final decision denying
benefits.

DATED: May 2, 2011
/S/ JAMES P. JONES
United States District Judge

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