Carroll v. Commissioner of Social Security
Filing
17
OPINION. Signed by Judge James P. Jones on 2/14/12. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
)
)
)
)
)
)
)
)
)
)
)
KENNETH RAY CARROLL,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
Case No. 2:11CV00022
OPINION
By: James P. Jones
United States District Judge
Roger W. Rutherford, Wolfe, Williams, Rutherford & Reynolds, Norton,
Virginia, for Plaintiff; Eric P. Kressman, Regional Chief Counsel, Region III,
Maija DiDomenico, Special Assistant United States Attorney, Office of the General
Counsel, Social Security Administration, Philadelphia, Pennsylvania, for
Defendant.
In this social security case, I affirm the final decision of the Commissioner.
I
Plaintiff Kenneth Ray Carroll filed this claim challenging the final decision
of the Commissioner of Social Security (the “Commissioner”) denying his claim
for disability insurance benefits and supplemental security income pursuant to
Titles II and XVI of the Social Security Act (the “Act”). 42 U.S.C.A. §§ 401-433
(West 2011), 1381-1383f (West 2003 & Supp. 2011). Jurisdiction of this court
exists pursuant to 42 U.S.C.A. §§ 405(g) and 1383(c)(3).
Carroll filed applications for benefits on June 18, 2007, claiming disability
since April 15, 2006. The claims were denied initially and on reconsideration. A
hearing was held before an administrative law judge (“ALJ”) on August 5, 2009.
At the hearing Carroll, represented by counsel, and an independent vocational
expert testified. The ALJ denied his claim and that decision became final when the
Social Security Administration Appeals Council denied his request for review.
Bowen then filed his Complaint in this court, objecting to the Commissioner’s final
decision.
The parties have filed cross motions for summary judgment, which have
been briefed. The case is ripe for decision.
II
Carroll was born on July 21, 1961, making him a younger individual under
the regulations at the time of the ALJ’s decision. 20 C.F.R. §§ 404.1563(c),
416.963(c) (2011). He completed the eighth grade, can read and write (but not
well) and can add and subtract. He previously worked as a general laborer, a
lumber stacker, and as a heat pump installer.
-2-
Carroll does not challenge the ALJ’s determination as to his physical
impairments. Rather, he argues that the ALJ lacked substantial evidence to support
her conclusion that his mental impairments were not disabling. For that reason,
this opinion will address only the aspects of his mental impairments.
From October 2005 through November 2007, Carroll was treated by Marissa
Vito Cruz, M.D., at Stone Mountain Health Services. He saw Dr. Vito Cruz
routinely, approximately every 1-3 months. In October 2005, Carroll presented no
mental health complaints. Dr. Vito Cruz noted that he did not appear depressed
and was alert and oriented x3. In December 2005, he discussed problems he was
having with work and with his family. Dr. Vito Cruz determined situational
depression and prescribed sleep medication to help both that issue and sleep
problems.
In February 2006, Carroll reported feeling increasingly anxious and nervous
because of the various things going on in his life. Again, Dr. Vito Cruz assessed
situational stress and prescribed Lexapro. She noted no abnormal mental status
findings. In May 2006, Carroll said that his nerves were acting up and that his
stuttering was becoming more prominent. Dr. Vito Cruz observed that he appeared
to be very nervous and assessed him as having depression/anxiety with increased
situational stress. In November 2006, Carroll said that he was not as stressed as he
was before and that the medication was keeping him “well controlled.” (R. at
-3-
300.) However, he said that he was still having a lot of problems with his nerves
and was quite anxious and somewhat depressed. He also said that he was trying to
find work as a painter. Dr. Vito Cruz assessed depression/anxiety and referred
Carroll to a social worker for further evaluation of his mental health. There is no
indication in the record that he followed through with this referral. Dr. Vito Cruz
continued his medication regime.
In December 2006, Carroll’s emotional health was “improved dramatically.”
(R. at 297.) He had started a job which Dr. Vito Cruz noted helped a lot “with his
feeling of self worth. (R. at 296.) She also observed that he did not appear to be
depressed and was alert and oriented x3. In January 2007, Carroll informed Dr.
Vito Cruz that he had stopped taking his Zoloft because he could not tell any
difference in his nerves. She noted that he seemed to be doing much better with
regard to his mental health but that he appeared slightly anxious and nervous. In
February 2007, Carroll was under increased stress due to the death of his mother.
Dr. Vito Cruz apparently prescribed him Klonopin.
In June 2007, Carroll told Dr. Vito Cruz that he was doing quite well and her
observations of him supported that report. She noted he did not appear to be
depressed. She refilled his Klonopin prescription.
In September 2007, Carroll presented for treatment to Lisa Deeds, F.N.P.,
also with Stone Mountain Health Services. He informed her that another doctor
-4-
had seen him after his last appointment with Dr. Vito Cruz and had stopped his
Lortab and Klonopin. Since then, he reported increasing nervousness and other
symptoms. Deeds prescribed him Klonopin but noted that she would try to taper
him off of it. He returned for a follow up in October 2007 and reported feeling
much better since being back on his medication. Deeds noted that his mood was
much better since the last appointment.
She prescribed a reduced dosage of
Klonopin and started Carroll on Amitriptyline, an anti-depressant.
She also
prescribed Lortab.
When Carroll returned in November, he stated that he was having greatly
increased anxiety as a result of both a reducing of the medication and increased
stressors at home. He apparently could not tolerate the Amitriptyline. Deeds
adjusted his medication, trying different anti-anxiety medications that were nonaddictive. At his December appointment, he reported that he had stopped taking
one of the anxiety medications she had prescribed and that he was experiencing a
high level of anxiety. He had a follow up appointment later in December at which
he said that his nerves were doing much better after being back on Klonopin. She
changed his pain medication to Percocet.
In January 2008, Carroll reported that he as experiencing increased agitation
on the Percocet. Deeds switched his pain medication again and re-prescribed the
Percocet.
At a later appointment in January, Deeds observed that Carroll’s
-5-
“anxiety and generalized behavior have been much improved since I have been
seeing him.” (R. at 488.) In March, he reported that he felt much better being
back on the Klonopin. However, in April 2008, Carroll said he was feeling more
depressed because of his pain and inability to work. Deeds prescribed Celexa for
the depression.
In June 2008, Carroll said his mood was a little better and
requested to be switched to Lexapro because of side effects with Celexa. Deeds
prescribed Lexapro and continued his Klonopin. Although Carroll apparently
stopped taking the Lexapro at some point, in September 2008 he had no mental
health concerns. In December 2008, he reported that he was doing very well.
It was not until May 2009 that Carroll again reported anxiety because he had
moved from the country into town. Deeds observed a depressed affect and decided
to try him on Cymbalta.
On July 6, 2009, Deeds completed a Mental Residual Functional Capacity
Questionnaire. She stated that Carroll was diagnosed with general anxiety disorder
and depression and that he had a good response to Klonopin. She opined that he
would be unable to meet competitive standards in certain areas, including
maintaining regular attendance and punctuality, sustaining an ordinary routine,
performing at a consistent pace without an unreasonable number / length of breaks,
traveling in unfamiliar places, and using public transportation. She felt that his
prognosis was stable but felt that his anxiety would be exacerbated in a work
-6-
setting. She also felt that he would be absent from work for more than four days a
month.
In February 2008, Carroll underwent a consultative examination with Kevin
Blackwell, D.O. Dr. Blackwell stated that Carroll was “alert, cooperative and
oriented x3, with good mental status.” (R. at 435.)
On August 22, 2007, Howard Leizer, Ph.D., a state agency psychologist,
reviewed Carroll’s file. He opined that Carroll’s mental impairments were not
severe and that Carroll would experience only mild limitations in activities of daily
living, social functioning, and concentration, persistence or pace. He also noted
the record indicated no episodes of decompensation. Dr. Leizer further observed
that Carroll’s anxiety and depression seemed to be largely circumstantial and that
Carroll would be capable of all levels of unrestricted substantial gainful activity.
On March 20, 2008, Joseph Leizer, Ph.D., another state agency psychologist,
reviewed the record and affirmed Dr. Howard Leizer’s conclusions. He noted that
though the record showed that between May 2005 and June 2007, Carroll suffered
some periodic and situational anxiety and depression, by June 2007 Carroll was
doing well.
At his hearing before the ALJ, Carroll testified that though he gets stressed
out and feels depressed, he has not seen a counselor or psychiatrist because he does
not have insurance for that. He also has never had to go to the hospital or
-7-
emergency room because of his depression. In the hypothetical presented to the
vocational expert, the ALJ included a limitation of simple, routine, repetitive and
unskilled work involving only occasional interaction with the public. Based on
that and the other hypothetical limitations, the vocational expert testified that there
were a significant number of unskilled, light jobs existing in the national economy.
After a careful review of the record, the ALJ concluded that Carroll’s
degenerative changes in the lumbar spine, other arthralgias, depression and anxiety
were severe impairments but that these impairments, either singly or in
combination, did not meet or medically equal any of the listed impairments. After
finding that Carroll could perform a reduced range of light work and that there
were a significant number of jobs in the national economy which Carroll could
perform, the ALJ concluded he was not disabled.
Carroll submitted records from Lee County Behavioral Health Services to
the Social Security Administration Appeals Council on January 10, 2011. The
records are dated between August 2010 and January 2011. Deeds referred Carroll
to the clinic after he experienced increased mental health symptoms with the death
of his brother. The examiner assessed major depressive disorder and assigned a
Global Assessment of Functioning (“GAF”) score of 50. Between September 2010
and January 2011, Carroll attended four counseling sessions and either canceled or
failed to attend five appointments. At every visit, Kathleen O’Dell, L.P.C., noted
-8-
that he was neatly groomed, had logical thought process, a depressed mood and
affect, but within normal limits, and no suicidal or homicidal ideations. They
discussed his depressed feelings and worked on problem-solving techniques.
For the reasons below, I find that substantial evidence supports the ALJ’s
decision.
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) (2011), 1382c(a)(3)(B).
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 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)(4),
-9-
416.920(a)(4) (2011). If it is determined at any point in the five-step analysis that
the claimant is not disabled, the inquiry immediately ceases. Id. The fourth and
fifth steps of the inquiry require an assessment of the claimant’s residual functional
capacity (“ 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
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) (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 this court to substitute its judgment for that of the Commissioner.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Carroll argues that the ALJ’s opinion is not supported by substantial
evidence because the ALJ failed to accord the proper weight to Deeds’ July 2009
-10-
evaluation of effect Carroll’s mental impairments would have on his ability to
work. Because Deeds was a long-time treating source, Carroll asserts, her opinions
regarding his mental impairments deserved great weight and had such weight been
given, a finding of disability could have been reached.
The ALJ was not required to adopt Deeds’ opinion as to Carroll’s mental
health limitations when formulating the RFC.
See 20 C.F.R. §§ 404.1527(e)(2-3),
416.927(e)(2-3) (2011). The ALJ determines a claimant’s RFC based upon her
review of the entire record, including the objective medical evidence, opinion
evidence and testimony. See 20 C.F.R. §§ 404.1545(a), 416.945(a) (2011). The
ALJ’s determination of the weight to give any medical source opinion, whether
from an acceptable medical source or not, depends on several factors, including the
consistency and supportability of the opinion. See 20 C.F.R. §§ 404.1527(d),
416.927(d) (2011).
The ALJ did not reject Deeds’ opinion as to Carroll’s mental limitations.
Rather, he considered her report and her treatment notes and based upon apparent
inconsistencies in the report, he gave her medical opinion as to the extent of
Carroll’s limitations less weight. That he considered her treatment notes and gave
some weight to her opinion is reflected in his conclusion that Carroll’s anxiety and
depression were severe impairments and in the limitations he imposed on the RFC.
Substantial evidence supported this approach. The record shows that Carroll has
-11-
suffered from anxiety and depression, which is exacerbated by situation stressors.
Chronic anxiety appears to be the more significant of these two impairments. Both
the anxiety and the depression responded to treatment with medication.
The
anxiety, in particular, responded well to treatment with Klonopin. See 20 C.F.R.
§§ 404.1530, 416.930 (2011). See also Gross v. Heckler, 785 F.2d 1163, 1166 (4th
Cir. 1986) (“If a symptom can be reasonably controlled by medication or
treatment, it is not disabling.”)
Under treatment, there is little evidence that
Carroll’s anxiety impairs him in any real way. He presented minimal complaints
regarding mental health to his treatment providers. He was able to care for his
personal needs, prepare simple meals, be outside, pay bills, watch television, and
spend time with family.
Further, Deeds’ own treatment notes did not show any significantly
abnormal mental status findings. Although Deeds at times noted that Carroll was
anxious or had a depressed affect, the overall trajectory of his treatment was one of
improvement. Especially when treated with Klonopin, Carroll generally reported
an improved mood and outlook. In her report, Deeds herself concluded that
Carroll’s prognosis was stable.
This evidence undermines Deeds’ seriously
restrictive limitations as laid out in the report and supports the ALJ’s conclusion as
to Carroll’s RFC.
-12-
Carroll also argues that the ALJ should have obtained a consultative
examination on his mental impairments.
The decision to get a consultative
examination lies with the Commissioner.
The regulations provide that the
Commissioner may arrange for an examination or test “[i]f your medical sources
cannot or will not give us sufficient medical evidence about your impairment for us
to determine whether you are disabled . . . .” 20 C.F.R. §§ 404.1517, 416.917
(2011). In this case, the record was sufficient for the ALJ to make a conclusion as
to Carroll’s mental limitations. In addition to the treatment notes from Dr. Vito
Cruz and Deeds, the record contained two opinions from state agency
psychologists concluding that Carroll’s mental impairments were not severe and
caused only mild limitations and no episodes of decompensation. Considering the
breadth of evidence indicating that Carroll’s mental impairments were not severe,
the ALJ was not in error for failing to get a consultative examination. 1
1
The additional records submitted to the Appeals Council do not disturb the
conclusion that the ALJ’s decision was supported by substantial evidence. See Wilkins v.
Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991) (noting that
the court must consider the entire record, including additional evidence submitted to the
Appeals Council, when reviewing the ALJ’s decision). The records submitted are not
material such that the ALJ’s decision “might reasonably have been different.” See
Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (quotation marks and citation
omitted). The records further support the evidence in the record that Carroll’s anxiety is
exacerbated by situational stressors, such as his brother’s death. This does not change the
overall conclusion that his anxiety and depression are treatable and do not impose more
than mild limitations on his ability to function.
-13-
IV
For the foregoing reasons, the plaintiff’s Motion for Summary Judgment will
be denied, and the defendant’s Motion for Summary Judgment will be granted. A
final judgment will be entered affirming the Commissioner’s final decision
denying benefits.
DATED: February 14, 2012
/s/ James P. Jones
United States District Judge
-14-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?