Call v. Commissioner of Social Security

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 07/25/2018. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
MICHAEL ANDREW CALL,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 1:17cv00026
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Michael Andrew Call, (“Call”), filed this action challenging the
final decision of the Commissioner of Social Security, (“Commissioner”), denying
his claims for disability insurance benefits, (“DIB”), and supplemental security
income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A.
§§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This case is before the
undersigned magistrate judge upon transfer by consent of the parties pursuant to 28
U.S.C. § 636(c)(1). Neither party has requested oral argument; therefore, this case
is ripe for decision.
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It 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
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(4th Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “substantial evidence.’”” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Call protectively filed applications for DIB and SSI
on April 18, 2012, alleging disability as of December 15, 2011, based on diabetes;
depression; anxiety; paranoia; panic attacks; knee problems; numbness and pain in
his feet and ankles; and a torn rotator cuff of the right shoulder. (Record, (“R.”), at
411-16, 445, 455, 485.) The claims were denied initially and upon reconsideration.
(R. at 188-90, 194, 199-201, 203-05.) Call then requested a hearing before an
administrative law judge, (“ALJ”). (R. at 207-08.) A hearing was held on
September 10, 2014, and a supplemental hearing was held on March 2, 2015, at
which Call was represented by counsel. (R. at 60-100.) By decision dated March 9,
2015, the ALJ denied Call’s claims. (R. at 168-77.) Call pursued his administrative
appeals, (R. at 349), and, on April 28, 2016, the Appeals Council remanded his
case for further action. (R. at 185-86.) Upon remand, a third hearing was held on
August 25, 2016, at which Call was represented by counsel. (R. at 42-59.)
By decision dated November 23, 2016, the ALJ denied Call’s claims. (R. at
10-26.) The ALJ found that Call met the nondisability insured status requirements
of the Act for DIB purposes through December 31, 2016. (R. at 12.) The ALJ also
found that Call had not engaged in substantial gainful activity since December 15,
2011, the alleged onset date. (R. at 12.) The ALJ found that the medical evidence
established that Call suffered from severe impairments, namely an anxiety disorder
with social phobia; obesity; rotator cuff injury; osteoarthritis; and diabetes mellitus,
but he found that Call did not have an impairment or combination of impairments
listed at or medically equal to one listed at 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R. at 12-13.) The ALJ found that Call had the residual functional
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capacity to perform sedentary work 1 except that he was only able to occasionally
kneel, crouch, stoop, balance, climb ramps and stairs, reach overhead with the right
upper extremity and interact with others; he could frequently reach in other
directions, handle and finger with the bilateral upper extremities; and he could
never crawl or climb ladders, ropes and scaffolds, interact with the public or have
direct contact with crowds of unfamiliar people. (R. at 15.) The ALJ found that
Call was unable to perform his past relevant work. (R. at 24.) Based on Call’s age,
education, work history and residual functional capacity and the testimony of a
vocational expert, the ALJ also found that jobs existed in significant numbers in
the national economy that Call could perform, including jobs as an assembler, a
weight tester and an addressing clerk. (R. at 24-25.) Thus, the ALJ found that Call
was not under a disability as defined under the Act, and was not eligible for DIB or
SSI benefits. (R. at 25-26.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2017).
After the ALJ issued his decision, Call pursued his administrative appeals,
(R. at 409), but the Appeals Council denied his request for review. (R. at 1-5.) Call
then filed this action seeking review of the ALJ’s unfavorable decision, which now
stands as the Commissioner’s final decision. See 20 C.F.R. §§ 404.981, 416.1481
(2017). The case is before this court on Call’s motion for summary judgment filed
December 22, 2017, and the Commissioner’s motion for summary judgment filed
January 26, 2018.

1

Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking or standing is
often necessary in carrying out job duties. Jobs are sedentary if walking or standing are required
occasionally and other sedentary criteria are met. See 20 C.F.R. §§ 404.1567(a), 416.967(a)
(2017).
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II. Facts
Call was born in 1972, (R. at 63, 411, 413), which classifies him as a
“younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a college
degree in machine shop and past relevant work experience as a gluer, a dishwasher
and an assistant operator at a stair and handrail parts manufacturer. (R. at 64, 6869, 81-82, 456.) Call stated that his days consisted of watching television, taking
care of his dog and cat, visiting friends and occasionally fishing with friends. (R. at
65.) Call testified that he had trouble using his right hand to pick up small objects
and to grip objects. (R. at 51-52.) He stated that he experienced numbness in his
feet, which made him “wobbly.” (R. at 74-75.) Call stated that he had to prop his
feet for 30 minutes to an hour daily due to numbness in his feet. (R. at 75.)
Asheley Wells, a vocational expert, also was present and testified at Call’s
September 2014 hearing.2 (R. at 80-87.) Wells was asked to consider a
hypothetical individual of Call’s age, education and work history, who could
occasionally lift and carry items weighing up to 10 pounds with his right arm and
up to 20 pounds with his left arm; who could sit for six hours in an eight-hour
workday; who could stand and walk four hours in an eight-hour workday; who
could only occasionally reach overhead, as well as push and pull; who could
frequently reach in all other directions and continuously handle, finger and feel
with his right hand; who could frequently reach overhead, as well as push and pull,
and continuously reach and/or finger and feel with his left hand and arm; who
could occasionally operate equipment, climb stairs and ramps, balance and kneel;
who could frequently stoop; and who could never climb ladders, crouch, crawl or
work around food or other types of products due to having hepatitis C. (R. at 8283.) Wells stated that the individual could not perform Call’s prior work, but that a
2

A hearing was scheduled for June 30, 2014; however, at the hearing, Call requested that
the hearing be postponed to give him the opportunity to obtain an attorney. (R. at 101-04.)
-4-

significant number of light 3 jobs existed in the national economy that such an
individual could perform, including jobs as an assembler. (R. at 83-85.) She was
asked to assume the same individual, but who was limited as indicated in the
assessment of Dr. Laurie E. Rennie, M.D., (R. at 681-86), and who could not work
around the public and could perform only simple one-to-three step jobs. (R. at 86.)
Wells stated that the hypothetical individual could perform light jobs that existed
in significant numbers in the national economy, including jobs as an assembler, a
packing line worker and a garment folder. (R. at 86.) Wells also stated that there
would be no jobs available should the hypothetical individual be limited as
indicated by the assessment of licensed clinical social worker, Marcy S.
Rosenbaum. (R. at 87, 627-28.)
Mark Hileman, a vocational expert, testified at Call’s March 2015
supplemental hearing. (R. at 95-99.) Hileman was asked to consider a hypothetical
individual of Call’s age, education and work history, who could occasionally lift
and carry items weighing up to 20 pounds with his right arm and frequently lift and
carry items weighing up to 20 pounds with his left arm; who could sit six hours in
an eight-hour workday and stand and walk four hours in an eight-hour workday;
who could occasionally reach overhead, push and pull with his right hand and
frequently reach in all other directions, handle, finger and feel with his right hand;
who could frequently reach overhead, as well as push and pull with his left hand
and continuously reach in all directions, handle, finger and feel with his left hand;
who could occasionally use his left and right feet for the operation of foot controls;
who could never climb ladders or scaffolds, crouch and crawl; who could
occasionally climb ramps and stairs, balance and kneel; who could frequently
stoop; who could never work around unprotected heights, humidity, wetness and
3

Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, he
also can perform sedentary work. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (2017).
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extreme cold; who could occasionally work around extreme heat and vibration; and
who could perform simple, routine, unskilled, one-to-three step jobs that did not
require interaction with the public. (R. at 96-97.) He stated that there would be a
significant number of unskilled, light jobs that existed in the national economy that
such an individual could perform, including jobs as a checker, a laundry folder and
a bindery-machine offbearer. (R. at 98.)
Wells also testified at Call’s August 2016 hearing. (R. at 56-58.) She was
asked to consider a hypothetical individual of Call’s age, education and work
history, who had the residual functional capacity to perform sedentary work; who
could occasionally stoop, crouch, kneel, climb stairs, balance, reach overhead with
the right dominant upper extremity and interact with co-workers and supervisors;
and who could not crawl or climb ladders; who could frequently reach, handle and
finger bilaterally; and who could not have public interaction or direct contact with
crowds or unfamiliar persons. (R. at 56-57.) Wells stated that such an individual
could perform unskilled sedentary jobs that existed in significant numbers in the
national economy, including jobs as an assembler, a weight tester and an
addressing clerk. (R. at 57.) Wells also testified that the same hypothetical
individual, but who was limited to using his right dominant upper extremity to only
occasionally reach, handle and finger, could not perform the jobs previously
identified. (R. at 57.) Wells further stated that there would be no jobs available
should the individual be limited as indicated in the medical source statement
completed by Rosenbaum. (R. at 57-58.)
In rendering his decision, the ALJ reviewed medical records from Joseph
Leizer, Ph.D., a state agency psychologist; Dr. Robert Keeley, M.D., a state agency
physician; David Deaver, Ph.D., a state agency psychologist; Dr. Robert
McGuffin, M.D., a state agency physician; Dr. Victoria Grady, M.D.; Marcy S.
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Rosenbaum, L.C.S.W.; Dr. Laurie E. Rennie, M.D., a medical expert; Saltville
Medical Center; Johnston Memorial Hospital; Abingdon Surgical Associates;
Abingdon Family Practice; Dr. Stephanie H. Alford, M.D.; and Christopher M.
Carusi, Ph.D., a licensed clinical psychologist.
Call received treatment and counseling at the Saltville Medical Center from
December 2010 through July 2016 4 for generalized anxiety disorder; panic
disorder without agoraphobia; major depressive disorder; upper respiratory
infections; a skin abscess; right shoulder and knee pain; hypertension; diabetes
mellitus; hyperlipidemia; cellulitis; low back pain; right elbow joint pain; flank
pain; and thrombocytopenia. (R. at 556, 558-59, 562, 565-66, 568, 570, 572, 574,
576, 578, 583, 586, 588, 632-33, 636, 638, 640-42, 646-47, 650-53, 657, 660-63,
675, 698, 705-14, 717-18, 829, 836, 866, 868, 870, 885, 889-92, 896, 898, 900,
904, 913, 917, 929.)
Rosenbaum’s examinations throughout 2012 repeatedly showed that Call
had fair grooming; appropriate behavior; fair insight; no memory problems; normal
thought content; normal speech; coherent thought processes; anxious mood and
depressed affect; and a then-current Global Assessment of Functioning, (“GAF”), 5
score of 60.6 (R. at 554, 556, 558-59, 562, 568, 570, 574, 578, 583, 586, 632, 636,
640, 646, 650, 652, 656-57, 660-62.) The record shows that, on six occasions
4

Call received counseling from Marcy S. Rosenbaum, L.C.S.W., a licensed clinical social
worker, from January 2012 through February 2016.
5

The GAF scale ranges from zero to 100 and “[c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS FOURTH EDITION, (“DSM-IV”), 32
(American Psychiatric Association 1994).
6

A GAF score of 51-60 indicates that the individual has “[m]oderate symptoms... OR
moderate difficulty in social, occupational, or school functioning....” DSM-IV at 32.
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between January and March 2012, Call’s GAF score was assessed at 50. 7 (R. at
572, 574, 576, 578, 583, 586.) In March 2012, Call reported that he did not get a
job for which he had applied. (R. at 568.) In May 2012, Call reported that he had a
busy week fixing his automobile. (R. at 558.) In June 2012, Call reported that he
was getting out of the house more, fishing and spending time with friends. (R. at
662.) In September 2012, Rosenbaum noted that Call abruptly left her office
making negative comments about the medical facility after being told that his
treating nurse practitioner could no longer prescribe controlled substances. (R. at
650-51.)
On August 18, 2012, Dr. Victoria Grady, M.D., examined Call at the request
of Disability Determination Services. (R. at 620-25.) Call reported that he had
suffered from depression and anxiety his entire adult life. (R. at 620.) He reported
that, since taking medication, he experienced only two panic attacks a week, as
opposed to daily panic attacks. (R. at 620-21.) Call reported that he was paranoid,
stating that he had “trouble trusting people.” (R. at 621.) He reported a right rotator
cuff tear following a motor vehicle accident, which was treated only with physical
therapy. (R. at 621.) Call reported that he could not stand for very long because his
legs and ankles swell, and he gets tired. (R. at 621.) X-rays of Call’s lumbar spine,
right shoulder and right knee were normal. (R. at 616-18.) Dr. Grady reported that
Call had a normal gait; he was able to balance; he had normal bilateral grip
strength; he had normal strength in the upper and lower extremities; he had
tenderness and crepitus in his knees; he had limited range of motion in his hips,
knees, and cervical and thoracolumbar spines; he had clear, fluent and congruent
speech; and appropriate thought processes. (R. at 622-23, 625.) Dr. Grady
diagnosed diabetes with neuropathy; depression and anxiety; panic attacks;
7

A GAF score of 41-50 indicates that the individual has “[s]erious symptoms ... OR any
serious impairment in social, occupational, or school functioning....” DSM-IV at 32.
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paranoia; right rotator cuff syndrome; and knee pain. (R. at 623.) Dr. Grady opined
that Call could stand, walk and/or sit up to six hours in an eight-hour workday; that
he would need to change positions as needed due to knee pain; he could
occasionally lift and carry items weighing up to 20 pounds; and he could
occasionally reach, handle, feel, grasp, finger, bend, stoop, crouch and squat. (R. at
623.)
On September 4, 2012, Joseph Leizer, Ph.D., a state agency psychologist,
completed a Psychiatric Review Technique form, (“PRTF”), finding that Call had
no restrictions on his activities of daily living, experienced only mild difficulties in
maintaining

social

functioning,

experienced

no

difficulties

maintaining

concentration, persistence or pace and had experienced no repeated episodes of
extended duration decompensation. (R. at 110-11.)
On September 4, 2012, Dr. Robert Keeley, M.D., a state agency physician,
found that Call had the residual functional capacity to perform light work. (R. at
112-15.) He found that Call was limited in his ability to push and/or pull with his
right upper extremity. (R. at 113.) Dr. Keeley found that Call could occasionally
climb, balance, stoop, kneel, crouch and crawl. (R. at 113.) He found that Call was
limited to frequent overhead reaching with his right upper extremity. (R. at 114.)
No visual or communicative limitations were noted. (R. at 114.) Dr. Keeley found
that Call must avoid concentrated exposure to vibration and hazards, such as
machinery and heights. (R. at 114.)
On October 16, 2012, Rosenbaum completed a mental assessment,
indicating that Call had no significant limitations in his ability to carry out very
short and simple instructions and to be aware of normal hazards and take
appropriate precautions. (R. at 627-28.) She opined that Call was moderately
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limited in his ability to remember locations and work-like procedures; to
understand and remember very short and simple instructions; to sustain an ordinary
routine without special supervision; to make simple work-related decisions; to ask
simple questions or request assistance; to respond appropriately to changes in the
work setting; and to set realistic goals or make plans independently of others. (R. at
627-28.) Rosenbaum found that Call was markedly limited in his ability to
understand, remember and carry out detailed instructions; to maintain attention and
concentration for extended periods; to perform activities within a schedule,
maintain regular attendance and be punctual within customary tolerances; to work
in coordination with or proximity to others without being distracted by them; to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; to interact appropriately with the
general public; to accept instructions and respond appropriately to criticism from
supervisors; to get along with co-workers or peers without distracting them or
exhibiting behavioral extremes; to maintain socially appropriate behavior and to
adhere to basic standards of neatness and cleanliness; and to travel in unfamiliar
places or use public transportation. (R. at 627-28.)
On October 15, 2012, Call saw R. Steven Sadler-Chapman, F.N.P., a family
nurse practitioner with the Saltville Medical Center, for complaints of right
shoulder and knee pain. (R. at 644.) He was diagnosed with joint pain. (R. at 644.)
That same day, Call saw Dr. Jamie C. Goodman, D.O., a physician with the
Saltville Medical Center, and reported that he had been out of Valium for a few
days and was having feelings of anger. (R. at 642.) Dr. Goodman reported that Call
had fair grooming; fair insight; normal speech; appropriate behavior; euthymic
mood; coherent thought processes; no memory problems; and normal thought
content. (R. at 642.) Dr. Goodman advised Call that he would not prescribe Valium
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or any other benzodiazepines. (R. at 642.) Dr. Goodman diagnosed anxiety
disorder, not otherwise specified. (R. at 642.) Call reported on numerous occasions
throughout 2012 that his medication, breathing techniques and counseling helped
his symptoms of depression and panic attacks. (R. at 558, 562, 572, 574, 576, 585,
636, 640, 662.) On October 2, 2012, Call reported to Rosenbaum that he spent time
sleeping, playing video games, talking on the telephone and walking. (R. at 646.)
He reported that he believed he could wash dishes for a living if he did not have to
be around other people. (R. at 640.)
On November 14, 2012, Call was admitted to Johnston Memorial Hospital
for an anterior chest wall wound with staph infection. (R. at 787-89.) He
underwent debridement and drainage and advancement flap complex closure, and,
by April 11, 2013, it was noted that Call was 100 percent healed. (R. at 777-84,
801-06, 842.)
On June 28, 2013, Dr. Simon Pennings, M.D., saw Call for complaints of
anxiety. (R. at 688-90.) Call reported that he had good symptom control. (R. at
688.) Dr. Pennings noted that Call’s hypertension and diabetes mellitus were
stable. (R. at 688.) Dr. Pennings reported that Call had a normal mood, and
examination of both feet was normal. (R. at 689.) In December 2013, Call’s
anxiety was asymptomatic. (R. at 691.) Call saw Dr. Pennings on five occasions
from June 2014 through May 2016. (R. at 694-96, 816-18, 849-57.) During this
time, his anxiety was asymptomatic; he had good symptom control with
medication; his mood was normal; and his hypertension was stable. (R. at 694-95,
816, 818, 849, 851-52, 855, 857.)
On July 23, 2013, David Deaver, Ph.D., a state agency psychologist,
completed a PRTF, finding that Call had no restrictions on his activities of daily
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living, experienced only mild difficulties in maintaining social functioning,
experienced no difficulties maintaining concentration, persistence or pace and had
experienced no repeated episodes of extended duration decompensation. (R. at
140-41.)
Also on July 23, 2013, Dr. Robert McGuffin, M.D., a state agency
physician, found that Call had the residual functional capacity to perform light
work. (R. at 143-45.) He found that Call was limited in his ability to push and/or
pull with his right upper extremity. (R. at 143.) Dr. McGuffin found that Call could
occasionally climb ladders, ropes and scaffolds, kneel and crawl; frequently climb
ramps and stairs, balance, stoop and crouch. (R. at 143-44.) He found that Call was
limited to frequent overhead reaching with his right upper extremity. (R. at 144.)
No visual or communicative limitations were noted. (R. at 144.) Dr. McGuffin
found that Call must avoid concentrated exposure to vibration and hazards, such as
machinery and heights. (R. at 144-45.)
Call was next seen by Rosenbaum on October 14, 2013, stating that he was
returning due to continued depression and need for support. (R. at 717-18.) He
reported that his medication helped with his symptoms. (R. at 717.) Rosenbaum
reported that Call had fair grooming; appropriate behavior; fair insight; no memory
problems; normal thought content; normal speech; coherent thought processes;
melancholy mood and affect; and a then-current GAF score of 60. (R. at 717-18.)
On October 21, 2013, Sadler-Chapman reported that Call had good range of
motion of the right knee with minimal crepitus and tenderness over the lateral
aspect and painful outward rotation in this area. (R. at 714.) On November 11,
2013, Call reported that he had several days of staying in bed depressed, which he
attributed to the anniversaries of his brother’s and father’s deaths. (R. at 712.) He
reported that counseling helped him to feel better. (R. at 712.) Rosenbaum assessed
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Call’s then-current GAF score at 60. (R. at 712.)
On January 28, 2014, Call reported to Rosenbaum that he had only a few
panic attacks “now and then.” (R. at 710.) Rosenbaum reported that Call had fair
grooming; appropriate behavior; fair insight; no memory problems; normal thought
content; normal speech; coherent thought processes; anxious mood and affect; and
a then-current GAF score of 60. (R. at 710.) On March 11, 2014, Rosenbaum noted
that Call had difficulty putting sentences together, slurred some of his words, and
his eyes closed frequently. (R. at 708-09.) Call admitted to taking unprescribed
suboxone periodically, including taking a “little piece this morning.” (R. at 708.)
Call also admitted to using Valium and marijuana. (R. at 708.) Rosenbaum
reported that Call had fair grooming; slow behavior; fair insight; no memory
problems; normal thought content; slurred speech; blocking thought processes; and
stupor mood and affect. (R. at 708.) Rosenbaum would not allow Call to drive
himself home, and a family member was contacted to pick him up. (R. at 709.) Call
refused referral for rehabilitation, despite acknowledging he had an “issue with
drugs.” (R. at 709.)
On March 17, 2014, Call saw Sadler-Chapman for complaints of lower leg
pain following a fall. (R. at 706.) He was diagnosed with lower leg joint pain. (R.
at 706.) On March 25, 2014, Call reported that he last smoked marijuana three to
four days prior and that he would smoke marijuana every day if he had it. (R. at
704.) Call reported that he became addicted to Lortab following surgery and that
he had begun taking Suboxone that was not prescribed for him. (R. at 704.)
Rosenbaum diagnosed generalized anxiety disorder; panic disorder without
agoraphobia; cannabis abuse; and opioid abuse. (R. at 705.)
On April 9, 2014, Dr. Laurie E. Rennie, M.D., a medical expert, completed
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medical interrogatories regarding Call’s physical impairments. (R. at 678-80.) Dr.
Rennie reported that a review of Call’s medical records indicated that he suffered
from an abscess with failed skin graft, secondary to Call removing a device; 8 knee
swelling with negative x-rays; hepatitis C by history; and diabetes mellitus, poorly
controlled. (R. at 678.) She reported that Call’s impairments did not meet or equal
any impairment described in the Listing of Impairments. (R. at 679.) Dr. Rennie
reported that Call could work in a restricted environment without much social
interaction. (R. at 679.)
That same day, Dr. Rennie completed a physical assessment, indicating that
Call could frequently lift and carry items weighing up to 20 pounds with his left
arm and occasionally lift and carry items weighing up to 20 pounds with his right
arm. (R. at 681-86.) She opined that Call could sit for up to six hours in an eighthour workday and without interruption; stand up to four hours in an eight-hour
workday and that he could do so for up to two hours without interruption; and walk
for up to four hours in an eight-hour workday and that he could do so for up to two
hours without interruption. (R. at 682.) Dr. Rennie reported that Call could
frequently reach overhead with his left hand; occasionally reach overhead with his
right hand; continuously reach in all other directions with his left hand; frequently
reach in all other directions with his right hand; continuously handle, finger and
feel with both hands; frequently push and pull with his left hand; occasionally push
and pull with his right hand; occasionally operate foot controls with both lower
extremities; frequently stoop; occasionally climb stairs and ramps, balance and
kneel; and never climb ladders or scaffolds, crouch or crawl. (R. at 683-84.) She
opined that Call could continuously work around dust, odors, fumes and
pulmonary irritants; frequently work around moving mechanical parts and operate
a motor vehicle; occasionally work around extreme heat and vibrations; and never
8

The particular device removed by Call was not specified by Dr. Rennie.
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work around unprotected heights, humidity and wetness and extreme cold. (R. at
685.)
On May 23, 2014, Sadler-Chapman noted that Call denied anxiety and
depression. (R. at 700.) In September 2014, Call reported that he fell the previous
week while fishing. (R. at 838.) Sadler-Chapman reported that Call was in “good
spirits.” (R. at 838.)
On September 26, 2014, Call presented to the emergency room at Johnston
Memorial Hospital for cellulitis of the right hand. (R. at 735, 740-53.) Call
reported that he fell on his hand and cut it while fishing. (R. at 740, 749.) Call
reported a history of IV drug use. (R. at 735.) X-rays of Call’s right hand showed
soft tissue swelling and small radiolucent foci within the dorsal soft tissues, likely
representing subcutaneous gas. (R. at 771.) An MRI of Call’s right hand showed
soft tissue fluid consistent with infectious tenosynovitis and some artifact
consistent with gas. (R. at 772-73.) On September 27, 2014, Call underwent an
incision and drainage of a large abscess on the dorsum of the right hand. (R. at
767-68, 825-28.) On September 29, 2014, Call was admitted for placement of a
peripherally inserted central catheter, (“PICC”), line to his left upper extremity to
treat cellulitis of Call’s right hand. (R. at 769-70.) On October 3, 2014, Call
presented to the emergency room at Johnston Memorial Hospital for increased
right hand pain, redness and swelling. (R. at 736-37.) An incision and drainage of
the abscess sight provided improvement of pain and swelling. (R. at 737.) An
echocardiogram, dated September 28, 2014, showed a mildly dilated right atrium, a
mild mitral annular calcification, mildly enlarged right ventricle, and no significant
valvular flow abnormalities were noted. (R. at 738-39.) He was diagnosed with
right hand cellulitis/abscess; uncontrolled diabetes mellitus; sepsis secondary to
abscess; and intravenous drug abuser. (R. at 736.) On October 5, 2014, Call
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presented to the emergency room at Johnston Memorial Hospital stating that his
PICC line came out. (R. at 732-34.) Antibiotics were administered by IV for the
infection of Call’s right hand. (R. at 733-34.) On October 6, 2014,9 Call underwent
another PICC line placement in the left upper extremity. (R. at 730-31.)
On December 2, 2014, Christopher M. Carusi, Ph.D., a licensed clinical
psychologist, evaluated Call at the request of Disability Determination Services.
(R. at 724-26.) Call was dressed appropriately; his grooming was adequate; he
walked without gait disturbance; he displayed no evidence of psychomotor
retardation or agitation; his speech was muffled, organized and goal-directed; he
was cooperative and responsive; his affect was broad, and his mood was neutral;
he had no impairment of long-term and immediate memory; his short-term
memory was impaired; he had adequate concentration; and his judgment was
concrete. (R. at 724-25.) Call denied being hospitalized for psychiatric treatment,
but reported that he was admitted to Southwestern Virginia Mental Health Institute
due to substance abuse. (R. at 724.) Carusi diagnosed social phobia and assessed
Call’s then-current GAF score at 50. (R. at 726.)
Carusi completed a mental assessment, indicating that Call had no
limitations on his ability to understand, remember and carry out instructions. (R. at
727-29.) He found that Call had mild limitations in his ability to interact with
supervisors and co-workers and moderate limitations in his ability to interact with
the public and to respond appropriately to usual work situations and to changes in a
routine work setting. (R. at 728.) Carusi noted that these limitations resulted from
Call’s intense anxiety around people. (R. at 728.)
9

On October 6, 2014, Rosenbaum noted that she received a mental capacity form from
Call’s attorney; however, she refused to complete the form because she had not seen Call since
March 2014. (R. at 834.)
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On December 22, 2014, Dr. Stephanie H. Alford, M.D., reported that Call’s
right hand was well-healed and neurovascularly intact. (R. at 819-20.) Call had
some stiffness in his right hand, but he could completely flex and extend. (R. at
819.)
In June 2015, Dr. Kristin O. Bresowar, M.D., a physician with the Saltville
Medical Center, reported that Call had good affect; good eye contact; normal
speech; and did not appear to be depressed, anxious or stressed. (R. at 929.) In July
2015, there was no evidence of diabetic macular edema or retinopathy in either of
Call’s eyes. (R. at 919.) In addition, a diabetic foot exam in July 2015 revealed no
evidence of prediabetic ulceration and intact sensation. (R. at 913.) Rosenbaum
next saw Call on July 21, 2015, for his complaints of crying spells. (R. at 916-18.)
Rosenbaum reported that Call had good hygiene and grooming; fair insight; no
memory problems; congruent thought content; normal speech; coherent thought
processes; and depressed mood and anxious affect. (R. at 917.) Rosenbaum
diagnosed mild, recurrent major depression and generalized anxiety disorder. (R. at
917.)
In September 2015, after being told that a prescription for Tylenol #3 would
be approved, Call stated that, “then it seems like you could give me a little
Vicodin.” (R. at 909.) Sadler-Chapman told Call that such a statement gave the
appearance of narcotic seeking. (R. at 909.) On October 12, 2015, a depression
screening indicated that Call had mild depression, and an anxiety screening
showed mild anxiety. (R. at 902.) Rosenbaum reported that Call had good hygiene
and grooming; fair insight; no memory problems; congruent thought content;
normal speech; coherent thought processes; and depressed mood and anxious
affect. (R. at 904.) Rosenbaum diagnosed mild, recurrent major depression and
generalized anxiety disorder. (R. at 904.) On November 25, 2015, a depression
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screening indicated that Call had mild depression, and an anxiety screening
showed mild anxiety. (R. at 894.) Call reported that his mood had been “pretty
good.” (R. at 894.) He also reported that he had not experienced any panic attacks
“in a long time.” (R. at 894.) Rosenbaum reported that Call had good hygiene and
grooming; fair insight; no memory problems; congruent thought content; normal
speech; coherent thought processes; and congruent mood with mild anxiousness.
(R. at 896.) Rosenbaum diagnosed mild, recurrent major depression and
generalized anxiety disorder. (R. at 896.) In December 2015, Call was diagnosed
with cellulitis of the left arm. (R. at 892.)
On February 10, 2016, Call reported that he had not experienced any panic
attacks. (R. at 887.) A depression screening indicated that Call had mild
depression, and an anxiety screening showed moderate anxiety. (R. at 887.)
Rosenbaum reported that Call had good hygiene and grooming; fair insight; no
memory problems; congruent thought content; normal speech; coherent thought
processes; and congruent mood with mild anxiousness. (R. at 889.) Rosenbaum
diagnosed generalized anxiety disorder and mild, major depressive disorder,
recurrent episode. (R. at 889.) On February 4, 2016, Call complained of pain in his
knees, shoulders and right wrist. (R. at 890.) Teresa L. Fullen, F.N.P., a family
nurse practitioner with the Saltville Medical Center, reported that Call had no
clubbing, cyanosis, erythema or edema in his extremities. (R. at 890.) On February
11, 2016, Call had a normal gait and good range of motion in both the upper and
lower extremities. (R. at 885.) Again, in May 2016, it was noted that Call had good
range of motion in his upper and lower extremities. (R. at 876.) In June 2016, Call
was concerned that his pain medication would be discontinued. (R. at 873.) In July
2016, Sadler-Chapman noted that Call reported that his arm was fine four days
prior, but was then reporting that “it’s killing” him. (R. at 868.) Call requested
narcotics. (R. at 868.) Sadler-Chapman diagnosed cellulitis and treated Call with
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antibiotics and a prescription-strength NSAID. (R. at 868.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (2017). See also Heckler v. Campbell,
461 U.S. 458, 460-62 (1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).
This process requires the Commissioner to consider, in order, whether a claimant
1) is working; 2) has a severe impairment; 3) has an impairment that meets or
equals the requirements of a listed impairment; 4) can return to his past relevant
work; and 5) if not, whether he can perform other work. See 20 C.F.R. §§
404.1520, 416.920. If the Commissioner finds conclusively that a claimant is or is
not disabled at any point in this process, review does not proceed to the next step.
See 20 C.F.R. §§ 404.1520(a), 416.920(a) (2017).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
The court must not weigh the evidence, as this court lacks authority to substitute its
judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained his findings and his rationale in crediting evidence. See
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Call argues that the ALJ failed to properly evaluate the opinions of Dr.
Grady, Carusi and Rosenbaum in determining his residual functional capacity.
(Plaintiff’s Brief In Support Of Motion For Summary Judgment, (“Plaintiff’s
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Brief”), at 11-15.) Based on my review of the record, I find this argument
unpersuasive. While the ALJ, in general, is required to give more weight to
opinion evidence from examining sources versus nonexamining medical sources,
the ALJ is not required to give controlling weight to the opinions of a consultative
examiner. See 20 C.F.R. §§ 404.1527(c), 416.927(c) (2017). In fact, even an
opinion from a treating physician will be accorded significantly less weight if it is
“not supported by clinical evidence or if it is inconsistent with other substantial
evidence….” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996).
Call argues that the ALJ erred by failing to adopt Dr. Grady’s assessment
that he could only occasionally reach, handle, feel, grasp and finger. (Plaintiff’s
Brief at 11-12.) The ALJ noted that he gave Dr. Grady’s assessment limited weight
because the limitations placed on Call’s upper extremities were not supported by
objective evidence and were inconsistent with the treatment record. (R. at 19.) In
fact, Dr. Grady’s clinical findings do not support her assessment. Dr. Grady found
that Call had normal range of motion in his shoulders, hands and fingers; he had
full strength in his upper extremities and full grip strength; he had no tenderness to
palpitation or crepitus in his shoulders; and he had intact sensation and reflexes
throughout his upper extremities. (R. at 622-23, 625.) The ALJ noted that Call
rarely sought treatment for upper extremity complaints, and when he did, treatment
of his upper extremities was primarily for acute infections, which resolved with
treatment. (R. at 19.) With regard to Call’s right rotator cuff tear, he complained of
right shoulder pain to treating sources on only two occasions. (R. at 644, 878.) In
2016, it was noted that Call had good range of motion of both the upper and lower
extremities. (R. at 876, 885.) Call was not referred for any additional treatment for
his shoulder. Call sought treatment on several occasions for pain in his upper
extremities, but these complaints of pain were associated with abscesses and
cellulitis of his upper extremities. (R. at 698, 702, 742-53, 898.) Despite initially
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alleging acute traumatic injuries as the cause of his abscesses and cellulitis, Call
later admitted to intravenous drug use and tested positive for the use of
methamphetamine. (R. at 742, 943.) Call was treated with incisional drainage and
antibiotics, and his infections resolved without any significant residual limitations.
(R. at 698, 702, 752, 767-68, 819, 898.)
Further, Dr. Grady’s upper extremity limitations also were inconsistent with
the opinion of medical expert Dr. Rennie. (R. at 19-20, 683.) Dr. Rennie opined
that Call could occasionally reach overhead with his right upper extremity and
could at least frequently reach in all other directions and continuously handle,
finger, and feel with his bilateral upper extremities. (R. at 683.) The ALJ found Dr.
Rennie’s upper extremity limitations were entitled to more weight, given her
expertise and the consistency of her opinion with the record evidence. (R. at 1920.) The ALJ also considered Call’s activities that required significant use of his
upper extremities, such as fishing. (R. at 23.)
Based on this, I find that the ALJ appropriately afforded little weight to Dr.
Grady’s upper extremity limitations because they were overly restrictive given her
objective examination findings and the record as a whole. Nevertheless, the ALJ
did not find that Call was without upper extremity limitations and incorporated
limitations into the residual functional capacity that were supported by the record.
Specifically, the ALJ limited Call to occasional overhead reaching with his right
upper extremity and frequent reaching in all other directions, handling and
fingering with his bilateral upper extremities. (R. at 15.)
Next, Call argues that the ALJ erred by failing to properly weigh the medical
opinion of Carusi. (Plaintiff’s Brief at 13.) Specifically, Call argues that the ALJ
erred by failing to discuss Carusi’s assessed GAF score of 50 and affording more
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weight to his medical source statement. (Plaintiff’s Brief at 13.) It has been the
Commissioner’s longstanding position that the GAF scale does not have a direct
correlation to the severity requirements in the Commissioner’s mental disorders
listings, and it is never dispositive in the disability determination. See Revised
Medical Criteria for Evaluating Mental Disorders & Traumatic Brain Injury, 65
Fed. Reg. 50746-01, 50764-65 (Aug. 21, 2000). Courts have found that GAF
scores are not necessarily indicative of an individual’s ability to work. See Gilroy
v. Astrue, 351 F. App’x 714, 715 (3d Cir. 2009) (“a GAF score of 45, if credited,
would not require a finding of disability”); Powell v. Astrue, 927 F. Supp. 2d 267,
273 (W.D. N.C. 2013) (“A GAF score is thus not dispositive of anything in and of
itself” and has no direct legal or medical correlation to the severity requirements of
social security regulations) (citing Oliver v. Comm’r of Soc. Sec., 415 F. App’x
681, 684 (6th Cir. 2011)).
The latest edition of the DSM-V no longer includes the GAF scale, in part,
because of its lack of conceptual clarity and questionable psychometrics in routine
practice. See Finley v. Colvin, 2013 WL 6384355, at *23 n.9 (S.D. W. Va. Dec. 5,
2013); Brown v. Colvin, 2013 WL 6039018, at *7 n.3 (E.D. Wash. Nov. 14, 2013).
Following the DSM-V’s deletion of the GAF scale, the Agency released an
Administrative Message, AM-13066, on July 22, 2013, stating:
[A] GAF needs supporting evidence to be given much weight.
By itself, the GAF cannot be used to “raise” or “lower”
someone’s level of function. The GAF is only a snapshot
opinion about the level of functioning. It is one opinion that we
consider with all the evidence about a person’s functioning.
Unless the clinician clearly explains the reasons behind his or
her GAF rating, and the period to which the rating applies, it
does not provide a reliable longitudinal picture of the
claimant’s mental functioning for a disability analysis. Admin.
Message 13066, Global Assessment of Functioning (GAF)
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Evidence in Disability Adjudication (Soc. Sec. Admin. July 22,
2013).
Lee v. Colvin, 2014 WL 2586935, at *6 n.3 (E.D. Pa. June 10, 2014) (emphasis
added). Thus, where a physician “has not ‘clearly explain[ed]’ the reasons for his
GAF score, the SSA has found that the GAF score does not provide a ‘reliable
longitudinal picture’ of a claimant’s mental functioning.” Lee, 2014 WL 2586935,
at *6 n.3. The Agency reaffirmed that a “GAF score is never dispositive of
impairment severity” and an ALJ should not “give controlling weight to a GAF
from a treating source unless it is well supported and not inconsistent with other
evidence.” Ladd v. Astrue, 2014 WL 2011638, at *1 n.2 (E.D. Pa. May 16, 2014)
(citing AM-13066). Accordingly, since the issuance of the DSM-V and the
Agency’s clarifying policy, courts have become more reluctant to find error in
failure to discuss a GAF score, and have expressly rejected arguments that a GAF
score of 50 or lower constitutes an inability to work for purposes of a Social
Security determination. See Clayton v. Colvin, 2014 WL 5439796, at *6 (W.D. Pa.
Oct. 24, 2014) (“absent evidence that a GAF score was meant to indicate an
impairment of the ability to work, a GAF score alone is insufficient to establish
disability.”); Schneider v. Colvin, 2014 WL 4269083, at *4 n.5 (D. Conn. Aug. 29,
2014) (“Since the issuance of the DSM-V, courts have become even more reluctant
to find any error in the failure to consider a plaintiff’s GAF scores”); Murray v.
Comm’r of Soc. Sec., 2013 WL 5428734, at *3 n.2 (N.D. Ohio Sept. 26, 2013).
This deletion suggests that GAF scores, while medical evidence, are not so
probative as to warrant automatic reversal if not discussed. See Stoyer v. Colvin,
2014 WL 4272764, at *18 (M.D. Pa. Aug. 28, 2014) (“[I]t was harmless error for
the ALJ to neglect to mention the GAF scores from [plaintiff’s] hospitalization in
September of 2010, especially in light of the recent changes to the Fifth Edition of
the Diagnostic and Statistical Manual of Mental Disorders regarding GAF
scores[.]”); Alcott v. Colvin, 2014 WL 4660364, at *6 (W.D. Mo. Sept. 17, 2014)
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(“Accordingly, the DSM-V’s rejection of the GAF assessment aside, substantial
evidence in the record supports a rejection of the GAF scores and a failure to
discuss them is harmless error.”).
Under this clarified framework, the ALJ’s failure to explicitly weigh
Carusi’s assessed GAF score of 50 does not warrant remand in the present case
where the ALJ thoroughly analyzed the mental health evidence of record,
discussed Carusi’s narrative report, wherein the GAF score was provided, and
explicitly weighed Carusi’s opinion that assessed specific work-related limitations.
See Paris v. Colvin, 2014 WL 534057, at *6 (W.D. Va. Feb. 10, 2014) (“[T]he
failure to reference a [GAF] score is not, standing alone, sufficient ground to
reverse a disability determination. This is particularly true ... where the ALJ fully
evaluated the records and treatment notes upon which the GAF scores were
based.”) (internal citations omitted); Clemins v. Astrue, 2014 WL 4093424, at *1920 (W.D. Va. Aug. 18, 2014) (finding that failure to discuss GAF scores did not
warrant remand where the ALJ considered Plaintiff’s mental health treatment
records).
The ALJ thoroughly discussed Call’s longitudinal mental health treatment,
including Carusi’s narrative report wherein the GAF score was provided. (R. at 1622.) As the ALJ discussed, Call received routine mental health therapy, from which
he benefited, and he made significant improvement with medication and therapy
such that he related “good symptom control.” (R. at 554, 556, 562, 572, 576, 636,
640, 656, 660, 662, 694, 816, 849, 852.) “If a symptom can be reasonably
controlled by medication or treatment, it is not disabling.” Gross v. Heckler, 785
F.2d 1163, 1166 (4th Cir. 1986). Moreover, the ALJ noted that Carusi’s
examination was relatively normal. (R. at 20, 725.) For instance, Carusi found that
Call was responsive and cooperative; his mood was neutral and affect was broad;
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his concentration was adequate, demonstrated by his ability to perform serial threes
without error and serial sevens with only one error; he solved simple mental
calculations; he repeated a simple phrase; and spelled “table forward and
backward.” (R. at 725.)
Lastly, Call argues that the ALJ improperly weighed the opinion of
Rosenbaum. (Plaintiff’s Brief at 13-15.) The ALJ stated that he was giving
Rosenbaum’s opinion “little weight” because it was not supported by the medical
evidence of record, including Rosenbaum’s own treatment notes. (R. at 21.) For
example, the ALJ explained that Rosenbaum’s treatment notes show that Call
complained of generalized anxiety, which could make it difficult for him to work
closely with other people, particularly in crowds of other people or with the public.
(R. at 21.) The ALJ also noted that, even though Call may not be able to work
around crowds or with the public, he consistently had normal interaction with his
other treating providers, suggesting that he could work around co-workers. (R. at
21.) In addition, the ALJ noted that Rosenbaum’s opinion consisted of only
checked boxes with no explanation or support given for her extreme and disabling
opinion. (R. at 21.)
Courts within this Circuit have found that such conclusory check box reports
are not strong evidence of disability. See, e.g, Shelton v. Colvin, 2015 WL
1276903, at *3 (W.D. Va. Mar. 20, 2015) (“The magistrate judge is correct in
stating these checkbox forms are of limited probative value.”); Leonard v. Astrue,
2012 WL 4404508, at *4 (W.D. Va. Sept. 25, 2012) (same); Bishop v. Astrue, 2012
WL 951775, at *3 n.5 (D. S.C. Mar. 20, 2012) (“The court notes that ‘[f]orm
reports in which a physician’s obligation is only to check a box or fill in a blank
are weak evidence at best.’”); Siddons v. Colvin, 2014 WL 6893802, at *11 (E.D.
N.C. Dec. 5, 2014) (“[f]orm reports such as questionnaires are arguably entitled to
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little weight due to the lack of explanation”); Norman v. Comm’r of Social Sec.,
2014 WL 5365290, at *27 (N.D. W.Va. Oct. 21, 2014) (“the undersigned notes
that the majority of this questionnaire was in a ‘check off’ form, which has been
referred to by other courts as ‘weak evidence at best.’”); McGlothlen v. Astrue,
2012 WL 3647411, at *6 (E.D. N.C. Aug. 23, 2012) (finding a form questionnaire
“entitled to little weight” due to the lack of substantive explanation.); Mason v.
Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993).
Furthermore, Rosenbaum’s treatment notes repeatedly showed that Call had
fair grooming; appropriate behavior; fair insight; no memory problems; normal
thought content; normal speech; coherent thought processes; anxious mood and
depressed affect. (R. at 554, 556, 558, 562, 568, 570, 574, 578, 583, 586, 632, 636,
640, 646, 650, 652, 656, 660, 662, 889, 896, 904.) Call reported on numerous
occasions that his medication, breathing techniques and counseling helped his
symptoms of depression and panic attacks. (R. at 558, 562, 572, 574, 576, 585,
636, 640, 662, 688, 694, 712, 717, 816, 849, 852, 855.) In May 2014, Call denied
anxiety and depression. (R. at 700.) In June 2015, Dr. Bresowar noted that Call did
not appear to be depressed, anxious or stressed. (R. at 929.) Based on this, I find
that the ALJ properly weighed the medical evidence.
Based on the above, I find that substantial evidence exists in the record to
support the ALJ’s finding that Call was not disabled. An appropriate Order and
Judgment will be entered.
DATED:

July 25, 2018.
s/

Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE

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