Justice v. Astrue
Filing
25
OPINION. Signed by Judge James P. Jones on 2/28/12. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
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ROSEMARY JUSTICE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
Case No. 1:11CV00026
OPINION
By: James P. Jones
United States District Judge
Gregory R. Herrell, Arrington Schelin & Herrell, P.C., Bristol, Virginia, for
Plaintiff. Eric P. Kressman, Regional Chief Counsel, Region III, Andrew C. Lynch,
Assistant Regional Counsel, Charles Kawas, Special Assistant United States
Attorney, Office of the General Counsel, Social Security Administration,
Philadelphia, Pennsylvania, for Defendant.
In this social security case, I affirm the final decision of the Commissioner.
I
Plaintiff Rosemary Justice filed this action challenging the final decision of
the Commissioner of Social Security (the “Commissioner”) denying her claims for
disability insurance benefits (“DIB”) and supplemental 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. 2011). Jurisdiction of this
court exists pursuant to 42 U.S.C.A. §§ 405(g) and 1383(c)(3).
Justice filed for benefits on March 25, 2008, alleging that she became
disabled on March 3, 2008.
Her claim was denied initially and upon
reconsideration. Justice received a hearing before an administrative law judge
(“ALJ”), during which Justice, represented by counsel, and a vocational expert
testified. The ALJ denied Justice’s claim, and the Social Security Administration
Appeals Council denied her Request for Reconsideration. Justice then filed her
Complaint with this court, objecting to the Commissioner’s final decision.
The parties have filed cross motions for summary judgment, which have
been briefed. The case is ripe for decision.
II
Justice was born on August 14, 1962, making her a younger person under
the regulations.
20 C.F.R. § 404.1563(c) (2011).
Justice has a tenth grade
education and has worked in the past as an administrative clerk, certified nursing
assistant, fast food worker, and caregiver. She originally claimed she was disabled
due to a blood disorder, foot pain, fibromyalgia, migraines, back problems,
anxiety, and depression.
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In November 2005, Justice sought treatment from Robert L. Hudgins, M.D.,
for complaints of distal paresthesias. Motor and sensory nerve conduction studies
were normal.
In January and February 2006, Justice sought treatment from Victor A.
Maquera, M.D., for complaints of headaches and increased burning and aching
pain in her feet. Autoimmune lab results were normal. Dr. Maquera noted that
walking decreased Justice’s foot pain. He prescribed Elavil and Sinemet.
On August 22, 2006, Justice was involved in an automobile accident.
Following the accident, she sought treatment from Joseph M. Shaughnessy, M.D.,
for complaints of neck pain and numbness and swelling in her right shoulder. Dr.
Shaughnessy diagnosed Justice with headaches, cervicalgia, a sprain/strain in the
cervical region, and a cervical muscle spasm. He placed her on a conservative
physical therapy plan and referred her for a MRI and nerve condition studies. In
September 2006, a MRI of the cervical spine revealed a C5-6 disc bulge and
chronic spur. In October 2006, nerve condition studies were normal.
From September 2006 through December 2006, Justice underwent physical
therapy with Elizabeth Robinson, LMT.
During this time period, Justice
complained of a severe grade of dull pain that occurred constantly on her right side
in her upper back and neck. Robinson reported that Justice had “measurable
improvement” over the course of her therapy. (R. at 330.) At the end of physical
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therapy, Dr. Shaughnessy indicated that Justice had a 6% impairment of her total
body function.
In October 2007, Justice sought treatment from Murshid A. Al-Awady,
M.D.., for complaints of chronic headaches. Dr. Al-Awady diagnosed her with
migraines and prescribed Fiorinol and Elavil.
In a follow-up visit in November 2007, Justice stated that she had not been
taking Fiorinol and that Elavil was ineffective. Dr. Al-Awady noted that, two
years earlier, Justice underwent a full neurological evaluation with negative
findings. He prescribed Vicodin, Ambien, and Topamax.
A couple of weeks later, Justice returned to Dr. Al-Awady with complaints
of low back pain. A lumbar spine study revealed mild degenerative changes but no
acute fractures. Dr. Al-Awady reported no paresthesia or weakness of either
extremity. He recommended physical therapy.
In March 2008, Justice presented to the emergency department at Baptist
Medical Center after a fall at home. The attending physician diagnosed Justice
with a closed fracture of the right foot. He prescribed Lortab.
Justice sought treatment from Dr. Al-Awady in March 2008.
She
complained of worsening pain in her back and right foot. Justice stated that she
had been unable to work since her fall. (R. at 370.) Dr. Al-Awady noted that
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Justice’s range of motion, muscle strength, and muscle tone were normal. He
prescribed Lortab.
In June 2008, Peter Knox, M. Ed., Psy. D., completed a mental status
evaluation. Upon examination, Dr. Knox observed that Justice’s memory was
intact, that she had no significant issues with concentration and persistence, and
that she had no significant impairment in work-related mental activities. He noted
that Justice had never sought professional help for mental health issues. (R. at
387.) Dr. Knox diagnosed Justice with an adjustment disorder with depressed
mood. He assessed a GAF score of 60. 1
In June 2008, William V. Choisser, M.D., conducted a consultative
examination at the request of Justice’s attorney. Dr. Choisser noted that Justice’s
main complaint was that she could not stand or walk for too long a period of time.
(R. at 390.) He diagnosed her with a right foot injury, fibromyalgia, extensive
migraines, and back pain.
Angeles Alvarez-Mullin, M.D., a state agency psychiatrist, reviewed
Justice’s medical records in June 2008. Dr. Alvarez-Mullin reported that Justice
had adjustment disorder with depressed mood, but that her mental impairment was
1
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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not severe. Dr. Alvarez-Mullin noted that Justice’s adjustment disorder caused
only mild restrictions in her daily activities. In September 2008, Carol Deatrick,
Ph.D., a state agency psychologist, independently reviewed Justice’s medical
records and agreed with Dr. Alvarez-Mullin’s assessment.
In July 2008, Susan L. Hicks completed a physical residual functional
capacity evaluation. She opined that Justice was capable of performing a range of
light work. In September 2008, Edward DeMiranda, M.D., also completed a
physical residual functional capacity evaluation and agreed with Hicks’
assessment.
Justice sought treatment from D.N. Patel, M.D., from September 2008
through September 2009. During this time period, she complained of back and leg
pain, headaches, nervousness, and depression. Dr. Patel prescribed Elavil, Celexa,
Vistaril, Inderol, and Zantac. He opined that Justice was unable to work due to her
depression. (R. at 455.)
Justice sought treatment at Thompson Family Health Center from January
2009 through September 2009.
Justice complained of frequent crying spells,
feelings of hopelessness, panic attacks, and migraines. Crystal Burke, LCSW,
diagnosed her with depressive and anxiety disorder. Burke allowed Justice to
verbally vent and encouraged relaxation techniques. She stated that Justice had
“some minimal relief” while on medication. (R. at 492.)
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In July 2009, Robert C. Miller, Ed. D., completed a mental status evaluation
at the request of Justice’s attorney. Upon examination, Dr. Miller observed that
Justice’s thought processes were logical and coherent; she was fully oriented; she
was able to maintain concentration for more than several minutes during the
examination; her level of intellectual functioning was in the low-average range;
and there was no evidence of hallucinations or perceptual disturbances. Dr. Miller
diagnosed Justice with major depressive disorder and panic disorder with
agoraphobia. On a form regarding Justice’s ability to perform mental work-related
activities, Dr. Miller indicated that Justice had poor ability to relate to co-workers,
deal with the public, deal with work stresses, and understand complex job
instructions. He assessed a GAF score of 45.
In August 2009, Ronald W. Brill, Ph.D., completed a mental status
examination at the request of Justice’s attorney. Dr. Brill observed that Justice
displayed deficiencies in concentration, but had adequate attention, memory, and
cognitive functioning. He noted that Justice had never been hospitalized nor gone
to the emergency room for treatment of emotional problems. (R. at 448.) Dr. Brill
diagnosed Justice with anxiety disorder and major depressive disorder, single
episode. On a form regarding Justice’s ability to perform mental work-related
activities, Dr. Brill indicated that Justice had poor ability to deal with work
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stresses, maintain attention and concentration, understand complex job
instructions, and demonstrate reliability. He assessed a GAF sore of 50.
In August 2009, an X ray of Justice’s lumbar spine revealed only
generalized demineralization. The vertebral bodies and disc spaces were normal.
In November 2009, Mary Ann Collier, FNP, completed a physical
assessment of Justice’s ability to do work-related activities. She indicated that
Justice could only stand or sit two hours in an eight-hour workday.
In December 2009, Justice was evaluated at the University of Virginia for
fibromyalgia and lupus. Alice Doyal, FNP, opined that it was unlikely that Justice
had lupus. Doyal indicated that Justice walked with a normal gait, had normal
deep tendon reflexes, displayed no muscle weakness, and maintained muscle
strength.
In January 2010, an X ray of the lumbar spine revealed only mild scoliosis
centered at L3-L4. Otherwise, alignment of the spine was maintained and there
was no significant vertebral body or intervertebral disc height loss.
At the administrative hearing held in November 2009, Justice testified on
her own behalf. Justice stated that she was no longer able to complete daily
activities such as watch television, cook, shop, pay bills, listen to the radio, or go to
the movies. Justice confirmed that she did occasionally drive to visit her daughter.
A vocational expert also testified.
He classified Justice’s past work as an
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administrative clerk as light, semi-skilled; her past work as a certified nursing
assistant as medium to heavy, semi-skilled; her past work as a fast food worker as
light, unskilled; and her past work as a caregiver as medium, skilled.
After reviewing all of Justice’s records and taking into consideration the
testimony at the hearing, the ALJ determined that she had severe impairments of
migraine headaches, fibromyalgia, degenerative disc and joint disease of the
cervical spine, degenerative joint disease of the lumbar spine, the residuals of a
right foot fracture, depression, and anxiety, but that none of these conditions, either
alone or in combination, met or medically equaled a listed impairment.
Taking into account Justice’s limitations, the ALJ determined that Justice
retained the residual functional capacity to perform a range of light work that
involved occasionally climbing ramps and stairs, balancing, stooping, kneeling,
crouching, and crawling. However, the ALJ stated that Justice should not climb
ladders, ropes, or scaffolds, and should avoid even moderate exposure to hazards in
the workplace such as moving mechanical parts, unprotected heights, and
excessive background noises. She was limited to only occasional contact with the
public.
The vocational expert testified that someone with Justice’s residual
functional capacity could work as a garment sorter, an office helper, and a laundry
folder. The vocational expert testified that those positions existed in significant
numbers in the national economy. Relying on this testimony, the ALJ concluded
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that Justice was able to perform work that existed in significant numbers in the
national economy and was therefore not disabled under the Act.
Justice argues that the ALJ’s decision is not supported by substantial
evidence because the ALJ improperly determined Justice’s residual functional
capacity. For the reasons below, I disagree.
III
The plaintiff bears the burden of proving that she 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 her “physical or mental
impairment or impairments are of such severity that [s]he is not only unable to do
h[er] previous work but cannot, considering h[er] 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).
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 her past relevant work; and (5) if not, whether she could perform
other work present in the national economy. See 20 C.F.R. §§ 404.1520(a)(4),
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416.920(a)(4) (2011). 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 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.
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) (internal quotation marks and citation omitted).
Substantial evidence is “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. Seacrist v. Weinberger, 538 F.2d 1054, 1956-57
(4th Cir. 1976). It is not the role of this court to substitute its judgment for that of
the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Justice argues that the ALJ’s determination is not supported by substantial
evidence. First, Justice argues that the ALJ improperly determined her mental
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residual functional capacity by giving too little weight to the opinions of Dr.
Miller, Dr. Brill, and Dr. Patel.
In weighing medical opinions, the ALJ must consider factors such as the
examining relationship, the treatment relationship, the supportability of the
opinion,
and
the
consistency
of
the
opinion
with
the
record.
20 C.F.R. § 404.1527(d) (2011). Although treatment relationship is a significant
factor, the ALJ is entitled to afford a treating source opinion “significantly less
weight” where it is not supported by the record. Craig, 76 F.3d at 590.
In the present case, the ALJ considered the opinions of Dr. Miller and Dr.
Brill, but gave little weight to their assessments, for several reasons. First, Dr.
Miller and Dr. Brill’s relationships with Justice were limited — their opinions were
based on one-time examinations, made at the request of Justice’s attorney. Second,
the opinions of these evaluators are inconsistent with their own mental evaluations
as well as the other medical evidence of record. For instance, Dr. Brill assessed a
GAF score of 50, indicating serious symptoms or limitations; yet, he noted that
Justice had adequate attention, memory, and cognitive functioning, and that she
had never been hospitalized nor treated at the emergency room for emotional
problems. (R. at 446-49.) Similarly, Dr. Miller assessed a GAF score of 45;
however, he reported that Justice’s thought processes were logical and coherent,
she was fully oriented and able to maintain concentration, her level of intellectual
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functioning was in the low-average range, and there was no evidence of
hallucinations or perceptual disturbances. (R. at 439-45.) Furthermore, Dr. Miller
noted that Justice’s MMPI-2 results were “invalid due to possible random
responding or exaggeration,” which casts doubt on the sincerity of Justice’s alleged
symptoms. (R. at 441.)
With respect to Dr. Patel, the ALJ’s assessment of his opinion is also
supported by substantial evidence.
Although Dr. Patel was Justice’s treating
physician, his mental assessment of Justice was limited — Dr. Patel never
conducted any psychological testing. Furthermore, Dr. Patel’s conclusion is not
well-supported by the other evidence of record. For example, Dr. Patel opined that
Justice was unable to work due to depression.
However, this is contrary to
consistent reports from Thompson Family Health that Justice was negative for
remarkable psychiatric problems. (R. at 478-79, 481-82, 484-85, 487-88.)
Finally, Justice argues that the ALJ improperly determined her physical
residual functional capacity by giving too little weight to Collier’s finding that
Justice cannot work full time.
This argument is without merit.
The ALJ’s
assessment is consistent with the record, which shows that Collier’s opinion is
inconsistent with the medical evidence of record. For example, in August 2009, an
X ray of Justice’s lumbar spine showed general demineralization, but normal
vertebral bodies and disc spaces. (R. at 496.) In January 2010, an X ray of the
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lumbar spine revealed only mild scoliosis. (R. at 498.)
Additionally, several
treating sources reported that Justice had normal gait, muscle strength, and deep
tendon reflexes, and that her central nervous system was free of neurological
deficit. (R. at 455, 479, 512.) Given this evidence, I agree with the ALJ’s decision
to afford little weight to Collier’s conclusion.
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: February 28, 2012
/s/ James P. Jones
United States District Judge
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