Lundblad v. Astrue

Filing 18

OPINION AND ORDER. Signed by Judge James P. Jones on 2/10/14. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
DEBORAH A. LUNDBLAD,

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Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY, 1
Defendant.

Case No. 1:12CV00096
OPINION AND ORDER
By: James P. Jones
United States District Judge

Ginger J. Largen, Morefield & Largen, P.L.C., Abingdon, Virginia, for
Plaintiff; Nora R. Koch, Acting Regional Chief Counsel, Region III, Alexander L.
Cristaudo, Assistant Regional Counsel, and Stephen M. Ball, 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 decision of the
Commissioner.

I
Plaintiff Deborah A. Lundblad filed this action challenging the final decision
of the Commissioner of Social Security (the “Commissioner”) denying his claim
for supplemental security income benefits (“SSI”) under Title XVI of the Social
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).

Security Act (“Act”), 42 U.S.C.A. §§ 1381-1383f (West 2012 & Supp. 2013).
Jurisdiction of this court exists under 42 U.S.C.A. § 1383(c)(3).
Lundblad filed an application for SSI with the Social Security
Administration on October 15, 2007. After preliminary denials of her claims, she
obtained a hearing before an administrative law judge (“ALJ”) on May 4, 2010.
On May 28, 2010, the ALJ issued a written decision finding that Lundblad was not
disabled under the Act. The Social Security Administration’s Appeals Council
reviewed the case and remanded the claim to the ALJ for further evidence and
decision. The ALJ held a second hearing on September 28, 2011, and on
November 11, 2011, issued a decision again denying the claim. The Appeals
Council denied review of this decision on November 6, 2012, thus making the
ALJ’s decision the final decision of the Commissioner. Lundblad then filed this
action, seeking judicial review of the Commissioner’s final decision.
The parties have filed cross motions for summary judgment, which have
been briefed and thereafter orally argued by counsel. The case is now ripe for
decision.

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II
Lundblad is 47 years old. She left school after the seventh grade and was
later unable to pass a GED examination. She previously worked as a housekeeper
at various motels, cleaning rooms. 2 She lives with her boyfriend and her young
daughter. Lundblad claimed to the Social Security Administration that she was
unable to work due to a combination of physical and mental impairments. In his
final written decision, the ALJ found that Lundblad had the following severe
impairments: “chronic obstructive pulmonary disease (COPD), chronic lumbar
strain, possible post-traumatic degenerative joint disorder of the left ankle,
generalized anxiety disorder, panic disorder without agoraphobia, and alcohol
dependence in reported remission.” (R. 22.)
The ALJ reviewed Lundblad’s medical history and the evidence presented at
the hearings and set forth the reasons for his factual findings. He found that
Lundblad did not have an impairment or combination of impairments that met or
medically equaled a listed impairment, that she had the residual functional capacity
to perform light excertional work, with appropriate limitations in accord with her
recognized impairments. Based upon the testimony of a vocational expert, Ann
2

Lundblad initially claimed disability from 2002, but her attorney later moved to
amend the onset date to October 15, 2007, the date of her SSI application. (R. 58.)
Lundblad told the ALJ she had worked as a housekeeper until sometime in 2006. (R. 57.)
She told Dr. Carusi in 2008 that she had worked until June of 2007. (R. 456.) In 2010
she worked 35 hours per week sweeping and cleaning windows as a condition to receive
Temporary Assistance for Needy Family (“TANF”) welfare benefits. (R. 72-73, 639.)
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Marie Cash, the ALJ determined that Lundblad was capable of performing her past
relevant work as a housekeeper. Accordingly, the ALJ found that the plaintiff was
not disabled within the meaning of the Act.
It is contended in the present case that the ALJ erred by (1) failing to fully
accept and apply the opinions of Christopher M. Carusi, Ph.D., a clinical
psychologist who saw and evaluated Lundblad for the Virginia Department of
Rehabilitative Services, and Pamela S. Tessnear, Ph.D., a clinical psychologist
who saw and evaluated Lundblad at the request of her attorney; and (2) failing to
consider the cumulative effect of Lundblad’s physical and mental impairments.

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 [she] is not only unable to do
[her] previous work but cannot, considering [her] 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. § 1382c(a)(3)(B).
In assessing disability claims, the ALJ must apply a five-step sequential
evaluation process. The ALJ considers whether the claimant: (1) has worked
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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 she could perform other work present
in the national economy. See 20 C.F.R. § 416.920(a)(4) (2013). 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 other
work present in the national economy. See 20 C.F.R. § 416.920(a)(4)(iv), (v).
In accordance with the Act, I must uphold the ALJ’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 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, 1056-57 (4th Cir. 1976). It is
not the role of the court to substitute its judgment for that of the Commissioner.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

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I have carefully reviewed the record evidence and conclude that the ALJ’s
decision in this case is supported by substantial evidence and was reached through
application of the correct legal standard.
MENTAL IMPAIRMENTS.
The plaintiff contends that the ALJ did not adequately consider the opinions
of Dr. Carusi, who examined Lundblad on July 24, 2008, and Dr. Tessnear, who
examined Lundblad on April 13, 2010.
In the report of his evaluation, Dr. Carusi opined that “Ms. Lundblad
appeared to be exaggerating her symptoms and endorsing highly unusual
symptoms.

Therefore, the content of her self-report is considered to be of

questionable reliability in this regard. Her overall presentation did suggest chronic
anxiety, however.” (R. 457.) He found she was likely “capable of understanding
direction, including simple and more detailed directions . . . . [but] that [her]
reported anxiety symptoms may interfere with her ability to maintain consistent
attendance and may hamper her ability to handle normal work stressors at times.”
(R. 458.)
Similarly, Dr. Tessnear found that Lundblad’s “psychological testing is
invalid because of apparent over-endorsement of negative impression items,
raising the possibility of symptom exaggeration.” (R. 643.) Dr. Tessnaer found
that while Lundblad was able to understand and follow simple instructions, “[s]he
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cannot handle detailed or complex instructions. This limits her ability to function
independently which is further compromised by anxiety and her desire never to be
alone.” (R. 644.) Dr. Tessnear opined that “[p]anic attacks are expected to create
interruptions, though of relatively brief duration, that is, less than 30 minutes.”
(Id.) In relation to a checkbox form entitled, “Medical Assessment of Ability to
Do Work-Related Activities (Mental),” Dr. Tessnear noted that as of the date of
claimed disability in 2007, certain of Lundblad’s abilities were “less than
satisfactory.” (R. 645-46, 721.)
The ALJ accepted Dr. Carusi’s opinions as consistent with the other
evidence of record.

(R. 33.) He partially accepted Dr. Tessnear’s opinions,

rejecting her opinion that Lundblad had a poor or no ability to maintain attention
and concentration, because it was inconsistent with the remaining record. (R. 34.)
It is argued on Lundblad’s behalf that because the ALJ accepted Dr. Carusi’s
opinion that her anxiety might interfere with consistent work attendance or work
stressors, she was necessarily disqualified from returning to her past work as a
housekeeper. The vocational expert at the second hearing testified, in response to a
hypothetical question from the ALJ, that if Lundblad missed work for one day a
week there would be no jobs available to her.3

3

The ALJ’s hypothetical was as follows:
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Viewed as a whole, I do not find that the ALJ’s decision was contrary to Dr.
Carusi’s findings. Dr. Carusi did not opine that Lundblad would miss one day a
week from work; only that her mental impairments might interfere with consistent
attendance. Lundblad’s other history, including her admitted daily activities, and
the report of the state agency medical consultant, Louis Perrott, Ph.D., indicated to
the contrary. 4 Similarly, while the evidence could have been resolved differently,
I find that the ALJ’s decision not to fully accept Dr. Tessnear opinions was
supported by substantial evidence.
COMBINED EFFECT OF IMPAIRMENTS.
The plaintiff contends that the ALJ failed to consider the combined effect of
his impairments, as required by the regulations. See 20 C.F.R. § 416.923 (2013).
However, the ALJ did accept that Lundblad had a number of severe impairments
and numerated these impairments in his hypothetical question to the vocational

Q Third hypothetical I want you to assume the first hypothetical is
now accurate and up to date but she would miss work. She’s got good days
and bad days, some days she would be unable to work. Let’s assume that
she would miss at least one day of work a week even if she had a job.
Would there be any jobs that she could do?
A No jobs.
(R. 59-60.)
4

Based upon his review of the medical history, including Dr. Carusi’s evaluation,
Dr. Perrott found that Lundblad possessed only a “moderately limited” ability “to
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances.” (R. 489.)
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expert. The vocation expert opined that even with these limitations, the plaintiff
had the ability to perform her past relevant work. The ALJ did not err in accepting
that opinion and finding the plaintiff not disabled.

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

ENTER: February 10, 2014
/s/ James P. Jones
United States District Judge

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