Hoopes v. Astrue
Filing
18
MEMORANDUM OPINION. Signed by Judge James P. Jones on 6/5/13. (flc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
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EDWARD CHARLES HOOPES,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY, 1
Defendant.
Case No. 1:12CV00068
OPINION
By: James P. Jones
United States District Judge
Ginger J. Largen, Morefield & Largen, P.L.C., Abingdon, Virginia, for
Plaintiff; Eric P. Kressman, Regional Chief Counsel, Region III, Patricia M.
Smith, Assistant Regional Counsel, and Alexander L. Cristaudo, 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 decision of the Commissioner.
I
Plaintiff Edward Charles Hoopes filed this action challenging the final
decision of the Commissioner of Social Security (the “Commissioner”) denying his
claim for a period of disability and disability insurance benefits pursuant to Title II
1
Carolyn W. Colvin became the Acting Commissioner on February 14, 2013, and
is substituted for Michael J. Astrue as the defendant in this suit pursuant to Federal Rule
of Civil Procedure 25(d).
of the Social Security Act (the “Act”), 42 U.S.C.A. §§ 401-34 (West 2012).
Jurisdiction of this court exists under 42 U.S.C.A. § 405(g).
Hoopes protectively applied for benefits on June 3, 2010, alleging disability
since May 30, 2010. His claim was denied initially and upon reconsideration. A
hearing was held before an administrative law judge (“ALJ”) on February 17,
2012, at which Hoopes, represented by counsel, and a vocational expert (“VE”)
testified. On March 28, 2012, the ALJ issued a decision finding that Hoopes could
perform a full range of work at all levels of exertion with certain restrictions and
thus was not disabled under the Act. Hoopes requested review by the Social
Security Administration’s Appeals Council. The Appeals Council first denied his
request for review on September 24, 2012, but then vacated its decision to allow it
to consider additional information the plaintiff submitted with his request. The
Appeals Council found that the new information related to a period of time after
the ALJ’s decision, and therefore could have no effect on the validity of that
decision.2
On September 27, 2012, the Appeals Council again denied the
plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. Hoopes then filed a Complaint in this court seeking judicial review
of the Commissioner’s decision.
2
The Appeals Council encouraged Hoopes to reapply for benefits if he wished to
have the new information considered in evaluating his eligibility for benefits. (R. at 2.)
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The parties have filed cross motions for summary judgment, which have
been briefed and orally argued. The case is now ripe for decision.
II
Hoopes claims disability based on his seizure disorder, diabetes, chronic
obstructive pulmonary disease (“COPD”), depression, and anxiety. He is a high
school graduate and previously worked for eleven years as a wirer attaching
electrical boxes to utility trailers and for eight years as a cook and kitchen manager
in a restaurant. (R. at 44-47.) He was 45 years old on the date of the ALJ’s
decision, making him a younger individual under the regulations. See 20 C.F.R. §
404.1563(c) (2012).
The record indicates that Hoopes has not engaged in
substantial gainful activity since the alleged onset date of May 30, 2010.
Hoopes claims that he became disabled as a result of a worsening seizure
condition. (R. at 46.) Marivi M. Niebauer, M.D., a neurologist who evaluated the
plaintiff on February 14, 2012, noted that his seizure history is vague. (R. at 485.)
From 2000 to 2007, medical records indicate the plaintiff experienced occasional
but infrequent seizures, and his condition appeared to respond well to medication.
Steven W. Morgan, M.D., the plaintiff’s neurologist, noted that Hoopes
experienced seizures when he stopped taking proprietary Dilantin — a seizure
medication — at the appropriate dosage.
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(R. at 234, 230.)
Although the
regulations promulgated by the Virginia Department of Motor Vehicles prohibit
individuals who have had a seizure in the preceding six months from driving, see
Va.
Dep’t
of
Motor
Vehicles,
Medical
&
Mental
Requirements,
http://www.dmv.state.va.us/drivers/#medical/ spec_restrict.asp (last visited June 5,
2013), Dr. Morgan opined on multiple occasions that Hoopes’s condition was
sufficiently controlled to warrant his having a driver’s license. (R. at 274, 280.) If
the plaintiff suffered a seizure, as he did in 2002 and 2004, Dr. Morgan or an
emergency room physician adjusted the plaintiff’s medication levels to ensure he
maintained a therapeutic level of Dilantin in his bloodstream. (R. at 315, 322.) Dr.
Morgan cautioned Hoopes, who reported drinking three to four beers per day,
about the danger that excessive alcohol consumption can pose for a person with
epilepsy by lowering the potential threshold for having a seizure. (R. at 303.)
Throughout his treatment of the plaintiff, Dr. Morgan observed the plaintiff’s
continued alcohol consumption, as well as his occasional failure to follow
instructions in taking his medication. (R. at 230, 309, 307, 301.)
From early May 2010, shortly before his alleged onset of disability, and
continuing through the date of the ALJ hearing, the plaintiff sought treatment
increasingly frequently after experiencing symptoms of seizures. 3 Hoopes testified
3
The record reflects that Hoopes sought treatment for seizures on the following
dates: April 12, 2009 (R. at 413); May 4, 2010 (R. at 331); June 22, 2011, at which time
he reported having had four seizures in the previous month (R. at 441); August 22, 2011
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that his seizures last about 15 to 20 minutes and he experiences memory loss
during these episodes. (R. at 50.) After suffering a seizure, he needs two hours to
recover and is unable to lift ten pounds. (R. at 185.) Stress can sometimes induce
his seizures and he does not handle changes to his routine well. (R. at 186.) He
has been unable to hold a driver’s license for five or six years as a result of the
frequency of his seizures. (R. at 47.)
Before the plaintiff lost his job, allegedly because seizures were interfering
with his work, his employer imposed a number of safety restrictions, such as not
using power tools or climbing ladders. Upon the plaintiff’s filing for disability
benefits, two state physicians evaluated his medical records, and reached similar
conclusions about the work restrictions necessitated by his seizure condition. (R.
at 68, 77.)
Both opined that Hoopes’s condition causes him no exertional
limitations, but does pose postural limitations that prohibit him from climbing
ladders, ropes or scaffolding. They concluded that he should avoid even moderate
exposure to hazards such as heights and machinery, and his ability to balance is
limited. The doctors noted, however, that Hoopes’ ability to stoop, kneel, crouch
or crawl, among other work-related tasks, is unlimited.
(R. at 448); December 5, 2011 (R. at 471); December 11, 2011 (R. at 463); January 9,
2012 (R. at 452); January 25, 2012 (R. at 497); May 26, 2012 (R. at 584); and June 6,
2012 (R. at 519-527). Hoopes testified before the ALJ that he believes he was
experiencing seizures at this rate for many years, but that his episodes went unnoticed or
unreported because he lived alone at the time. He moved in with his brother in June
2011, who can now observe the frequency of his seizures. (R. at 51.)
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Around the same time that Hoopes began to report more seizures, he also
began seeking treatment for anxiety and depression. His primary care physician,
David Parker, M.D., diagnosed the plaintiff to be suffering from anxiety,
neuropathy, and depression, and referred him to Daniel Hardwick, Ph.D., a
psychologist, for treatment. (R. at 341, 350, 437.) At his first appointment with
Dr. Hardwick, the plaintiff described problems with anxiety, his separation from
his fiancé, and his relationship with his mother. (R. at 433.) Noting few clinical
findings, Dr. Hardwick diagnosed the plaintiff as suffering from major depression,
recurrent, and assigned him a Global Assessment of Functioning (“GAF”) score of
50.4 (R. at 432.)
Dr. Hardwick held four treatment sessions with Hoopes. On November 11,
2010, they discussed the plaintiff’s relationship issues and potential coping
mechanisms. Dr. Hardwick noted that the plaintiff was casually groomed, had a
labile affect, was oriented to time, place and person, and showed normal activity
level, speech and thought processes. His mood was depressed and his judgment
and insight were fair.
(R. at 431.)
On November 24, Dr. Hardwick noted
4
A GAF score indicates an individual’s overall level of functioning at the time of
examination. It is made up of two components: symptom severity and social
occupational functioning. A GAF score ranging from 61 to 70 indicates some mild
symptoms or some difficulty in social, occupational, or school functioning; a GAF score
ranging from 51 to 60 denotes functioning with moderate symptoms or moderate
difficulty in social or occupational functioning; a GAF score ranging from 41 to 50
indicates functioning with serious symptoms or any serious impairment in social,
occupational, or school functioning. Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 32-34 (4th ed. 2000).
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improvement, describing the plaintiff’s mood as “euthymic.” (R. at 430.) The
plaintiff continued to report improvement on December 3. On December 17, 2010,
Dr. Hardwick observed that the plaintiff’s mood was anxious, and his activity level
was slow. The plaintiff blamed himself for the problems in his life, which Dr.
Hardwick believed suggested a potential for paranoid ideation. (R. at 428.)
Dr. Hardwick saw Hoopes again on February 11, 2011, when he completed
an assessment of the plaintiff’s ability to do work-related activities. (R. at 435-36.)
This assessment recorded no clinical findings to support the conclusions therein.
Dr. Hardwick opined that the plaintiff has a fair ability to follow work rules, relate
to coworkers, deal with the public, use judgment, and maintain attention and
concentration. Dr. Hardwick concluded that Hoopes has poor or no ability to
interact with supervisors, deal with work stress, or function independently.
Dr. Hardwick did not see the plaintiff again until December 30, 2011, at
which time he noted improvement in the plaintiff’s condition, characterizing him
as well-groomed and cooperative. He had normal motor activity and speech, and
his thought process, memory, judgment and insight were intact. Hoopes’ mood
was euthymic, his affect was appropriate, and he was oriented to time, place and
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person. Dr. Hardwick continued, however, to assign the plaintiff a GAF score of
50.5 (R. at 483.)
A number of Dr. Hardwick’s conclusions regarding the plaintiff’s inability
to function outside his home are contradicted by the plaintiff’s descriptions of his
abilities and daily activities. At the time he applied for disability benefits, Hoopes
reported that he lived alone and was able to prepare meals, wash dishes and
clothes, clean the house, and do projects around his home including cut the grass.
(R. at 180.) He shopped for groceries every Saturday, which he could accomplish
by himself. (R. at 183.) He enjoyed watching television and playing computer
games, an activity he had to limit to some degree because of his seizure disorder.
(R. at 184.) He reported that he walked daily, and could follow instructions and
get along with authority figures with no difficulty. (R. at 185.) He is also able to
pay bills, count change, and generally manage his finances without assistance. (R.
at 183.) Finally, Hoopes reported that he has no problems getting along with
family, friends or neighbors. (R. at 185.)
5
Following the ALJ’s decision the plaintiff sought additional treatment at Twin
City Medical Center and from Licensed Professional Counselor Bill McFeature. The
plaintiff submitted these records to the Appeals Council for its consideration of his claim.
See Wilkins v. Sec’y, Dept’ of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)
(holding that where the Appeals Council considers additional evidence and incorporates
it into the record, a reviewing court must also consider the new evidence as part of the
record). I find that these records do not affect the ALJ’s determination.
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At the hearing, the ALJ posed two hypotheticals for the VE’s consideration
in determining whether the plaintiff had the residual functional capacity (“RFC”)
to perform jobs existing in the national economy. First, the ALJ asked the VE to
consider whether any jobs existed that could be performed by a high school
graduate of the plaintiff’s age who has no exertional limitations, but who can never
climb and can balance at most only frequently. The VE opined that such a person
could work as a cashier, of which there are 30,000 positions in Virginia and over
1.1 million in the United States.6 (R. at 60.) The ALJ’s second hypothetical for
the VE involved an individual with the same characteristics as the first, with the
added work-related limitations of having poor or no ability to interact with
supervisors, deal with work stress, or function independently — the limitations Dr.
Hardwick stated that the plaintiff suffered in his February 2011 evaluation. The
VE opined that no jobs could be performed by such a person. (R. at 62.)
The ALJ found that Hoopes suffers from the severe impairments of major
motor seizures, COPD, and anxiety, all of which impose more than minimal
limitations on his ability to work. The ALJ noted that medical records indicate that
the plaintiff’s seizures, when properly treated with medication, could be well-
6
The transcript of the hearing reflects that the VE testified that there are “1.1
billion” cashier positions in the United States. This is clearly either a transcription error,
or an unintentional misstatement by the VE. I will assume that the VE’s testimony
should have been that there are 1.1 million such positions in the national economy. The
parties have not raised this issue in their briefing.
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controlled. In determining RFC, the ALJ accommodated the plaintiff’s condition
by providing for environmental restrictions. The ALJ concluded that Hoopes can
perform a full range of work at all exertional levels, but can never drive or climb
ladders, ropes or stairs. He also can never be exposed to unprotected heights or
dangerous equipment or products.
The ALJ, however, did not find Dr. Hardwick’s assessment of the plaintiff’s
inability to function in a work environment to be supported by the evidence. The
ALJ noted the inconsistencies between Dr. Hardwick’s treatment notes and his
February 2011 assessment.
The ALJ pointed out that in his most recent
assessment, Dr. Hardwick noted no functional deficits that support his prior
conclusion that the plaintiff would be unable to function in an employment setting.
In addition, although some of the plaintiff’s other treating physicians noted
symptoms of depression or anxiety, none described the sort of severe limitations
that would support Dr. Hardwick’s conclusions. Finally, the ALJ found that the
plaintiff’s testimony and his statements in the Adult Functions Reports indicate
that his non-exertional limitations are not as severe as Dr. Hardwick’s assessment
indicated. Based on this RFC assessment and the VE’s testimony, the ALJ held
that Hoopes is capable of performing jobs that exist in significant numbers in the
national economy and therefore is not disabled as defined by the Act.
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Hoopes contests the ALJ’s decision, arguing that he failed to accord proper
weight to the opinion of a treating physician — Dr. Hardwick — in evaluating the
total effect of all the plaintiff’s conditions, both exertional and non-exertional. As
a result, Hoopes contends that the RFC determination is not supported by
substantial evidence, given the ALJ’s failure to make an individualized evaluation
of the plaintiff’s mental impairments and his failure to specifically evaluate the
plaintiff’s ability to function outside the home. The Commissioner argues that the
ALJ reasonably accommodated the plaintiff’s seizure disorder by placing
restrictions on his RFC and that he complied with applicable regulations for
evaluating medical source opinions in his consideration of Dr. Hardwick’s
assessment.
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).
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In assessing disability 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 medically equals the severity of a listed
impairment; (4) could return to his 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). 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 RFC, 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.; Johnson v. Barnhart, 434 F.3d 650,
653-54 (4th Cir. 2005).
In accordance with the Act, I must uphold the Commissioner’s findings if
substantial evidence supports them and the findings were reached through the
application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). Substantial evidence is “more than a mere scintilla. It 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). I must not reweigh the evidence or make credibility
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determinations because those functions are left to the ALJ. Johnson, 434 F.3d at
653. “Where conflicting evidence allows reasonable minds to differ as to whether
a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id.
(alteration in original) (internal quotation marks and citation omitted).
In this case, the plaintiff argues that the ALJ’s decision is not supported by
substantial evidence because he did not adequately consider the limitations
imposed on the plaintiff by his mental impairments. Specifically, the plaintiff
challenges the ALJ’s decision to accord less weight to Dr. Hardwick’s February
2011 assessment, which was completed after five treatment sessions and which
makes specific findings regarding the plaintiff’s residual capacity to work, while
according substantial weight to Dr. Hardwick’s subsequent and isolated evaluation
of the plaintiff in December 2011.
“Although the treating physician rule generally requires a court to accord
greater weight to the testimony of a treating physician, the rule does not require
that the testimony be given controlling weight.” Hunter v. Sullivan, 993 F.2d 31,
35 (4th Cir. 1992). For that reason, “if a physician’s opinion is not supported by
clinical evidence or if it is inconsistent with other substantial evidence, it should be
accorded significantly less weight.” Craig, 76 F.3d at 590. In this case, the ALJ
not only fully considered Dr. Hardwick’s opinion but also properly discounted it
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for lack of supporting clinical evidence and for its inconsistencies with other
substantial evidence.
First, it is clear that the ALJ fully considered Dr. Hardwick’s opinion
because he requested during the hearing that the plaintiff describe the evidence that
substantiated those conclusions.
(R. at 40.)
Dr. Hardwick’s February 2011
assessment lists no clinical findings about the plaintiff’s mental impairments. (R.
at 435-36.) The assessment is merely a check list unsupported by a description of
symptoms.
Moreover, Dr. Hardwick’s treatment notes from both prior and
subsequent sessions with the plaintiff contradict the contention that the plaintiff’s
limitations are so severe. Dr. Hardwick consistently found Hoopes to be oriented
to time, place and person with normal speech, activity level, and thought processes.
Hoops was an active participant in his treatment and demonstrated fair judgment
and insight. In his most recent visit, Dr. Hardwick found Hoopes to be wellgroomed, cooperative, and euthymic. All of these observations support a finding
that Hoopes could function in a work environment outside of his home. Moreover,
Dr. Hardwick’s treatment notes consistently indicate that the focus of their sessions
was personal relationships and medical problems. The progress notes make no
mention of discussions of work or financial stress that might support Dr.
Hardwick’s assessment of the plaintiff’s ability to work.
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The plaintiff’s testimony regarding his management of his personal affairs
is additional substantive evidence that contradicts Dr. Hardwick’s assessment. The
plaintiff testified that he had lived alone, prepared his own meals, and did his own
chores around the house. He is capable of managing his finances and can do his
own shopping. Furthermore, he interacts with his family on a daily basis and
attends his medical appointments, taking an active role in his care.
This
information, derived from the plaintiff’s statements, is substantial evidence
contradicting Dr. Hardwick’s conclusion that the plaintiff has poor or no ability to
function independently, maintain his personal appearance, or perform other workrelated tasks. Finally, the plaintiff stated in his Adult Functions Report that he
could follow directions and get along with supervisors, which directly contradicts
Dr. Hardwick’s conclusions. Given the absence of clinical findings in the record,
as well as the substantial evidence of the plaintiff’s ability to function
independently, including his long history of prior successful employment, the ALJ
was entitled to accord less weight to Dr. Hardwick’s opinion.
The plaintiff’s arguments focus on the ALJ’s failure to adequately consider
his limitations due to his mental impairments, specifically in conjunction with his
physical limitations resulting from his seizure disorder.
Although Dr. Parker
diagnosed the plaintiff with depression and anxiety, he made no findings about the
severity of those conditions or the limitations they imposed. The plaintiff gave
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only very limited testimony about his anxiety before the ALJ, stating that his
nerves caused him to tremble and that his seizure disorder caused him additional
stress. (R. at 52-53.) There is no other evidence in the record regarding the
plaintiff’s mental impairments. As the ALJ was entitled to give less weight to Dr.
Hardwick’s assessment, therefore, he was also entitled to rely on the VE’s
testimony that a person with the plaintiff’s physical limitations, but with no
specified mental impairments could perform jobs that exist in substantial numbers
in the national economy.
IV
For the foregoing reasons, I find that the Commissioner’s decision is
supported by substantial evidence. 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 for the relevant time period.
DATED: June 5, 2013
/s/ James P. Jones
United States District Judge
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