Ritchie v. Astrue
Filing
24
OPINION. Signed by Judge James P. Jones on 6/26/12. (ejs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
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KEITH E. RITCHIE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
Case No. 2:11CV00012
OPINION
By: James P. Jones
United States District Judge
Pamela A. Counts, Lee & Phipps, P.C., Wise, Virginia, for Plaintiff. Nora
R. Koch, Acting Regional Chief Counsel, Region III, Eda Giusti, Assistant
Regional Chief Counsel, Charles J. Kawas, Special Assistant United States
Attorney, Office of the General Counsel, Social Security Administration,
Philadelphia, Pennsylvania, for Defendant.
In this social security case, I sustain the Commissioner’s Objections to the
magistrate judge’s Report and Recommendation and affirm the denial of benefits.
I
Plaintiff Keith E. Ritchie filed an application for disability insurance and
supplemental security income benefits with the Social Security Administration
(“SSA”) pursuant to Titles II and XVI of the Social Security Act (the “Act”), 42
U.S.C.A. §§ 401-433 (West 2011 & Supp. 2012) and 1381-1383f (West 2012).
After the claims were denied initially and upon reconsideration, a hearing was held
before an administrative law judge (“ALJ”). The ALJ issued a decision denying
Ritchie’s claims. The SSA’s Appeals Council denied Ritchie’s request for review
and the ALJ’s decision became the final decision of the Commissioner of Social
Security (the “Commissioner”).
Ritchie then sought judicial review of the denial pursuant to 42 U.S.C.A. §§
405(g) and 1383(c)(3). I referred the case to a magistrate judge for determination
pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 2006) and Federal Rule of Civil
Procedure 72(b)(1). The magistrate judge considered the record and the parties’
cross-motions for summary judgment and issued a report and recommendation
(“R&R”) that the case be remanded to the Commissioner for further administrative
consideration. Ritchie v. Astrue, No. 2:11cv00012, 2012 WL 1999892, at *8-9
(W.D. Va. May 9, 2012).
The Commissioner has timely objected to the R&R pursuant to 28 U.S.C.A.
§ 636(b)(1)(C) and Federal Rule of Civil Procedure 72(b)(2). No timely response
has been filed by the plaintiff and the Objections are ripe for decision.
II
The magistrate judge found that the ALJ’s determination of Ritchie’s mental
residual functional capacity (“RFC”) was not supported by substantial evidence.
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The magistrate judge concluded that the ALJ had summarily rejected the bulk of
mental health restrictions placed upon Ritchie by the two state agency
psychologists, despite stating in the decision that she was according the opinions of
those psychologists significant weight. In the RFC determination, the ALJ limited
Ritchie to simple, non-complex work that did not require him to work around the
public or interactively with others. However, the magistrate judge noted that both
state agency psychologists noted on Form SSA-4734 — entitled “Mental Residual
Functional Capacity Assessment” — that Ritchie was moderately limited in many
other areas, including his ability to perform activities within a schedule; to
maintain regular attendance and be punctual within customary tolerances; to
sustain an ordinary routine without special supervision; and to complete a normal
workday and workweek without interruptions from psychologically-based
symptoms. (R. at 518-19, 560-61.) Because the ALJ had failed to include these
restrictions in her RFC consideration and had given no explanation for such failure,
the magistrate judge concluded that the RFC determination was not supported by
substantial evidence.
This court reviews de novo those portions of the R&R to which the
Commissioner has objected. 28 U.S.C.A. § 636(b)(1)(C). The Commissioner
contends that the magistrate judge erred in her evaluation of the psychologists’
mental health assessments.
Specifically, the Commissioner argues that the
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restrictions which concerned the magistrate judge were included in Section I of the
Mental Residual Functional Capacity Form, and do not represent the RFC
assessment upon which the ALJ is to base her decision.
Rather, the RFC
assessment, wherein the psychologist states what a claimant can still do despite his
impairments and upon which the ALJ is to rely in formulating the RFC, is found in
Section III of the form. The defendant argues that the ALJ was not required to
include the limitations described in Section I in her RFC determination.
The SSA’s Program Operations Manual System (“POMS”) confirms the
defendant’s argument. The POMS explains the function and interpretation of
Form SSA-4734 and each of its parts. The POMS states that Section I of SSA4734, the “Summary Conclusion,” is “merely a worksheet to aid in deciding the
presence and degree of functional limitations and the adequacy of documentation
and does not constitute the RFC assessment.” POMS § DI 24510.060 (B)(2)(a),
available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510060.
Section III, the “Functional Capacity Assessment,” is for recording the
mental RFC determination. “It is in this section that the actual mental RFC
assessment is recorded, explaining the conclusions indicated in section I, in terms
of the extent to which these mental capacities or functions could or could not be
performed in work settings.” Id. at (B)(4)(a).
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Thus, in formulating the RFC assessment, the ALJ properly relied upon the
psychologists’ conclusions as stated in Section III of their forms because it is in
this section that the medical consultant records what the claimant can still do
despite his impairments. Id. One of the state agency psychologists, Howard S.
Leizer, Ph.D., stated in Section III that Ritchie retained the ability to perform
simple, non-stressful work. (R. at 517, 519.) The other, Louis Perrott, Ph.D.,
stated in Section III that Ritchie retained the capacity to perform simple, unskilled
work in a setting where he did not have to interact with the general public. (R. at
561-63.) The ALJ’s RFC determination directly reflected these assessments.1 The
ALJ did not err in omitting the additional limitations described in Section I of the
form. See Berry v. Astrue, No. 1:08-cv-00005, 2009 WL 50072, at *14-15 (W.D.
Va. Jan. 7, 2009) (The “ALJ was not required to include any limitations noted in
Section I of the mental residual functional capacity form, as indicated by the
POMS.”); Nance v. Astrue, No. 7:10-CV-218-FL, 2011 WL 4899754, at *8
(E.D.N.C. Sept. 20, 2011) (“To the extent Claimant contends the findings [in
Section I of the mental RFC form], including that Claimant is ‘markedly limited’
in his ability to interact appropriately with the general public, represent Claimant’s
1
The ALJ’s hypothetical question posed to the vocational expert limited
capabilities, among others, to simple, non-complex tasks and work with people in a work
area, but not cooperatively and/or interactively with others, and no work with the public.
The vocational expert testified that such an individual could perform work that existed in
substantial numbers in the national economy.
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RFC, . . . Claimant is mistaken.”), adopted, 2011 WL 4888868 (E.D.N.C. Oct. 13,
2011).
The ALJ’s failure to incorporate the limitations from Section I was the only
reason the magistrate judge recommended remand for further consideration and it
is the only finding objected to by the Commissioner.
I find, based on the
magistrate judge’s other findings, that substantial evidence supports the ALJ’s
decision denying benefits to Ritchie.2
III
For the foregoing reasons, the Commissioner’s Objections to the magistrate
judge’s R&R will be sustained, the plaintiff’s Motion for Summary Judgment will
be denied, and the Commissioner’s Motion for Summary Judgment will be
granted. A final judgment will be entered affirming the Commissioner’s final
decision denying benefits.
2
On summary judgment, Ritchie argued that the ALJ had erred in failing to give
controlling weight to the opinion of his treating physician that Ritchie was “permanently
disabled” due to his mental impairments. The magistrate judge concluded that the ALJ
was entitled not to give the opinion controlling weight because it was contradicted by the
physician’s own treatments notes and by the other evidence in the record. However,
based on her conclusion that the ALJ erroneously summarily rejected the state agency
psychologists’ assessments, the magistrate judge found that there was not substantial
evidence to support the ALJ’s decision. Because it is clear the ALJ was not required to
include those additional limitations and that her RFC assessment was supported by
substantial evidence, remand is unnecessary.
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DATED: June 26, 2012
/s/ James P. Jones
United States District Judge
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