Jackson v. Commissioner of Social Security
Filing
19
OPINION. Signed by Judge James P. Jones on 7/22/13. (ejs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
GARY WAYNE JACKSON,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY, 1
Defendant.
Case No. 2:12CV00008
OPINION
By: James P. Jones
United States District Judge
Vernon M. Williams, Wolfe Williams Rutherford & Reynolds, Norton,
Virginia, for Plaintiff. Eric P. Kressman, Regional Chief Counsel, Region III,
Elizabeth A. Corritore, Assistant Regional Counsel, and Alexander L. Cristaudo,
Special Assistant United States Attorney, Office of the General Counsel, Social
Security Administration, Philadelphia, Pennsylvania.
In this social security case, I affirm the decision of the Commissioner.
I
Plaintiff Gary Wayne Jackson filed this claim challenging the final decision
of the Commissioner of Social Security (the “Commissioner”) denying his claim
for disability insurance benefits (“DIB”) pursuant to Title II of the Social Security
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 Fed. R. Civil
P. 25(d).
Act (the “Act”), 42 U.S.C.A. §§ 401-434 (West 2011 & Supp. 2013). Jurisdiction
of this court exists under 42 U.S.C.A. § 405(g).
Jackson protectively applied for DIB benefits on April 16, 2008, alleging
disability beginning on January 26, 2008. He met the insured status requirements
through December 31, 2011.
Jackson’s claim was denied initially and upon
reconsideration. A hearing was held before an administrative law judge (“ALJ”)
on February 9, 2010, at which Jackson, represented by counsel, and a vocational
expert (“VE”) testified. On March 5, 2010, the ALJ issued a decision denying
Jackson’s claim.
The Appeals Council denied Jackson’s request for review,
thereby making the ALJ’s decision the final decision of the Commissioner.
Jackson then filed the Complaint in this court seeking judicial review of the
Commissioner’s decision.
The parties have filed cross motions for summary judgment, which have
been briefed. The case is now ripe for decision.
II
Jackson alleged disability due to sleep apnea, hearing loss, back and knee
problems, depression, and anxiety.
Jackson was 50 years old on the alleged
disability onset date, making him a “person closely approaching advanced age”
under the regulations. 20 C.F.R. § 404.1563(d) (2012). Jackson has a high school
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education and has received job training as an auto mechanic. He previously
worked as a coal miner, a shuttle car operator, a corrections officer, and an
automobile mechanic. Jackson has not engaged in substantial gainful activity since
the alleged onset date of January 26, 2008. (R. at 19.)
Jackson has received regular medical treatment from Joshua Sutherland,
D.O., since at least 2005, after Jackson presented with complaints of back and leg
pain. (R. at 280.) In 2005, Dr. Sutherland performed an MRI on Jackson that
revealed mild bulging discs from L3-S1 with no compromise of the neural canal or
exit foramina at any level; the remainder of the MRI was unremarkable. (Id.) Dr.
Sutherland prescribed Lortab and Ultram. (R. at 232.)
Jackson also complained to Dr. Sutherland of trouble sleeping.
Dr.
Sutherland referred Jackson to R.V. Mettu, M.D., FACP. Dr. Mettu conducted a
sleep study on Jackson in June 2005, and diagnosed him with moderate obstructive
sleep apnea. (R. at 239-241.) Following the sleep study, Dr. Mettu recommended
that Jackson use a continuous positive airway pressure (“CPAP”) mask. (R. at
240.) In November 2005, Dr. Mettu opined that Jackson’s obstructive sleep apnea
was corrected with the CPAP mask. (R. at 243.)
Despite the pain medication Dr. Sutherland prescribed in 2005, Jackson
continued to complain of back and knee pain. (R. at 261-273.) Throughout 2005
and 2006, Dr. Sutherland acknowledged Jackson’s complaints of pain and opined
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that he suffered from tenderness and a decreased range of motion (“ROM”) of the
lumbar spine with sciatica and neuralgia of both legs, an occasional presence of
muscle spasms, and had one occasion of an abnormal leg lift, but had normal
examinations of the cervical and thoracic spines, arms, sensorium, deep
tendon/reflexes, foot drop, and muscle guarding. (Id.) In addition, Dr. Sutherland
frequently wrote that Jackson “has decreased range of motion in the lumbar spine
in lifting, bending, stooping, and squatting and could not do lumbar flexion,
extension, and rotation.” (Id.)
In June 2006, Dr. Sutherland referred Jackson to Leonard Steward, Ph.D., to
determine Jackson’s level of mental functioning and personality patterns. (R. at
247.) Dr. Steward performed a psychological evaluation on Jackson in June and
July 2006. The evaluation indicated that Jackson had a Full Scale IQ of 84, Verbal
IQ Score of 91, and Performance IQ Score of 78. (R. at 251.) Dr. Steward opined
that Jackson suffered from anxiety and depression. He also observed that Jackson
demonstrated emotional conditions consistent with the symptoms of a chronic pain
syndrome. (R. at 254.) Dr. Steward further opined that Jackson “appear[ed]
permanently and totally disabled from any type of substantial gainful occupation
currently available in the United States economic market on a sustained basis for at
least a year or more.” (Id.)
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In January 2007, Jackson again complained to Dr. Sutherland of back and
leg pain. Dr. Sutherland performed an X ray on Jackson which revealed facet
syndrome and disc narrowing of the cervical spine from C4 to C6. (R. at 319.)
In September 2007, Jackson’s attorney referred him to Teresa Jarrell, M.A.,
a licensed psychologist, to perform a psychological evaluation. (R. at 281.) Ms.
Jarrell administered the Million Clinical Multiaxial Inventory (“MCMI-III”),
Patient Pain Profile (“P-3”), Clinical Interview, and Mental Status Examination.
(R. at 283-284.)
The exams indicated that Jackson’s immediate and recent
memory was within normal limits, remote memory and concentration was mildly
deficient, insight was moderately deficient, and judgment was mildly deficient. (R.
at 284.)
The evaluation also indicated significant elevations of anxiety and
suggested depression. (Id.) Ms. Jarrell’s evaluation also indicated that Jackson
suffered from physical problems, pain, and health-related issues to the extent that
they had a negative effect on his life. (R. at 286.) Jackson’s Global Assessment of
Functioning (“GAF”) score was 50.2 (R. at 287.) Ms. Jarrell concluded that
2
A GAF score indicates an individual’s overall level of functioning at the time of
examination. It is made up of two components: symptom severity and social
occupational functioning. A GAF score ranging from 61 to 70 indicates some mild
symptoms or some difficulty in social, occupational, or school functioning; a GAF score
ranging from 51 to 60 denotes functioning with moderate symptoms or moderate
difficulty in social or occupational functioning; a GAF score ranging from 41 to 50
indicates functioning with serious symptoms or any serious impairment in social,
occupational, or school functioning. Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 32-34 (4th ed. 2000).
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Jackson was not capable of obtaining and sustaining meaningful gainful
employment. (Id.)
Following the September 2007 evaluation, Ms. Jarrell completed a Medical
Assessment of Ability to do Work Related Activities (Mental). Ms. Jarrell opined
that Jackson’s ability was poor to none to deal with work stresses, maintain
attention and concentration, understand, remember and carry out complex and
detailed job instructions, behave in an emotionally stable manner, relate
predictably to social situations, and demonstrate reliability. (R. at 289-290.) Ms.
Jarrell further opined that Jackson had fair ability to follow work rules, relate to coworkers, deal with public, use judgment with the public, interact with supervisors,
function independently, understand, remember, and carry out simple job
instructions, and maintain personal appearance. (R. at 290.)
Subsequently, in a February 2008 appointment, Dr. Sutherland opined that
Jackson suffered from lumbar spine disc disease with diminished ROM, sciatica,
neuralgia in both legs, chronic fatigue syndrome, and chronic pain syndrome. (R.
at 318.) Dr. Sutherland prescribed Ultram and Lortab for Jackson’s pain. (Id.) Dr.
Sutherland also referred Jackson to Marsha Mead, Ph.D., a licensed professional
counselor, for counseling “associated with dealing with complex medical and
emotional disorder.” (Id.)
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Jackson met with Dr. Mead later that month and complained of depression,
excessive worrying, and an increased temper. (R. at 302.) Dr. Mead initially
diagnosed Jackson with dysthymic disorder and generalized anxiety disorder. (R.
at 307.) Dr. Mead also opined that Jackson was moderately incapacitated due to
Jackson’s mental and physical condition. (R. at 298.) At a follow-up appointment
on March 14, 2008, Dr. Mead administered the Beck Anxiety Inventory (“BAI”)
and Beck Depression Inventory II (“BDI-II”) to Jackson. (R. at 299-301.) Dr.
Mead’s records indicate that Jackson scored in the severe range on both tests. (R.
at 297.)
Jackson followed up with Dr. Sutherland on March 26, 2008.
Dr.
Sutherland performed an X ray on Jackson, which revealed increased lordosis of
the cervical spine and degenerative disc disease of the cervical spine at C3 through
C6. (R. at 315.) Dr. Sutherland noted that the X ray showed no evidence of any
pathological fractures of the spine. (Id.) Jackson continued to meet with Dr.
Sutherland on a monthly basis throughout the remainder of 2008, during which Dr.
Sutherland prescribed various medications such as Lyrica, Naprosyn, Vicodin, and
Cymbalta. (R. at 313, 385, 440-453.)
Jackson also continued to meet with Dr. Mead throughout 2008. Dr. Mead’s
evaluations revealed Jackson had a depressed and anxious mood, but was
otherwise fully oriented, had an appropriate affect, normal speech, no
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hallucinations, and had intact thought process, memory, judgment, and insight. (R.
295-297, 463-464.)
In October 2008, on referral from Dr. Sutherland, Jackson visited The Heart
Center, a branch of Cardiovascular Associates, in Kingsport, Tennessee, for a
stress test. (R. 418-419.) Jackson returned to The Heart Center on November 4,
2008, for a follow-up, during which Keith Kramer, M.D., reported an impression
that Jackson suffered from hyperlipidemia, chronic fatigue/malaise, dizziness,
atypical chest pain, smokeless tobacco abuse, hyptertension, sleep apnea, and coal
mining exposure. (R. at 417.)
Jackson continued to follow-up with Dr. Mead throughout 2009. During
Jackson’s appointments, Dr. Mead continued to report a depressed and anxious
mood, but psychological examinations were otherwise normal and revealed
appropriate affect, normal speech, intact thought process, no hallucinations or
suicidal ideations, and intact memory, judgment, and insight. (R. at 460, 456-458.)
Jackson also reported difficulty sleeping on more than one occasion. (R. at 458459.)
Jackson was also regularly seen by Dr. Sutherland through 2009 and 2010.
Dr. Sutherland continued to indicate that Jackson suffered from lumbar disc
disease and neuralgia, and later diagnosed Jackson with hypertension,
hypothyroidism, and tendinitis of the left foot. (R. at 424-436, 524-529.) Dr.
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Sutherland continued to prescribe Jackson medication, including Vicodin, Lortab,
Ultram, and Darvocet. (R. at 426-436, 531-535.)
In addition, Dr. Sutherland completed a physical and mental assessment
form in late 2009. Dr. Sutherland assessed Jackson’s ability to deal with the
public, use judgment with the public, interact with supervisors, deal with work
stresses, function independently, maintain attention and concentration, understand,
remember, and carryout complex and detailed job instructions, and demonstrate
reliability as poor to none. (R. 420-421.) Dr. Sutherland opined that Jackson
could occasionally lift 20 pounds and frequently lift 10 pounds, stand or walk for
two hours out of an eight hour workday, and sit for three hours out of an eight hour
workday. (R. at 422.) Dr. Sutherland further opined that Jackson could never
climb, stoop, kneel, crouch, or crawl. (R. at 423.)
Ms. Jarrell performed another psychological evaluation of Jackson on
January 26, 2010. Ms. Jarrell noted that Jackson was polite and cooperative and
was oriented in all spheres.
Ms. Jarrell’s evaluation revealed that Jackson’s
immediate and recent memory were within normal limits, his remote memory and
capacity for concentration were only mildly deficient, his judgment was only
mildly deficient, his thought content was relevant, and his thought process was
generally linear, but his insight appeared to be moderately deficient. (R. 512-522.)
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Several state agency physicians evaluated Jackson’s residual functional
capacity (“RFC”). On July 23, 2008, Robert McGuffin, M.D., assessed Jackson’s
physical RFC. Dr. McGuffin reviewed Jackson’s medical records and opined that
Jackson could occasionally lift or carry 20 pounds and could frequently lift or carry
10 pounds. (R. at 377.) Dr. McGuffin further opined that Jackson could stand or
walk for six hours out of an eight hour workday, with normal breaks, and could sit
for six hours out of an eight hour workday. (Id.) Dr. McGuffin also opined that
Jackson could occasionally climb, balance, stoop, kneel, crouch, and crawl. (R. at
378.) Dr. McGuffin concluded that Jackson could perform light work with only
occasional postural movements and occasional overhead reaching. (R. at 377381.)
At the reconsideration level, Michael Hartman, M.D., also reviewed
Jackson’s medical records and evaluated his physical RFC on September 18, 2008.
Dr. Hartman’s evaluation mirrored Dr. McGuffin’s evaluation. (R. at 392-396.)
On July 22, 2008, Richard Milan, Jr., Ph.D., a state agency psychologist,
reviewed Jackson’s medical records and evaluated Jackson’s mental RFC. Dr.
Milan observed that Jackson had moderate psychological symptoms that were
managed with outpatient counseling and medications prescribed by a nonpsychiatric source. (R. at 361.) Dr. Milan further noted that Jackson had not
required psychiatric hospitalization or intensive psychiatric services, and noted that
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he was not being treated by a psychiatrist. (Id.) Dr. Milan opined that Jackson
retained the capacity for understanding and remembering simple instructions,
concentrating, persisting at work duties, interacting appropriately with people, and
adapting to changing activities within the workplace. (Id.) Dr. Milan concluded
that Jackson was “capable of meeting the basic mental demands of competitive
work on an ongoing basis, despite the limitations arising from his condition.” (Id.)
At the reconsideration level, Howard Leizer, Ph.D., a state agency physician,
also reviewed Jackson’s medical records and evaluated his mental RFC on
September 18, 2008. Dr. Leizer’s evaluation mirrored Dr. Milan’s evaluation. (R.
at 412-414.)
At the hearing on February 9, 2010, Donald Anderson, an impartial VE,
testified.
The ALJ posed a hypothetical scenario in which he described an
individual with the RFC to perform light work with some modifications. (R. at 6061.)
The VE indicated that a person of Jackson’s age, education, and work
experience, with the stated RFC, could not work Jackson’s past jobs, but that such
a person could perform several jobs that existed in significant numbers in the
national economy, including a retail marker, cleaner, and folder. (R. at 61-62.)
The ALJ found that Jackson met the insured status requirements through
December 31, 2011, had not engaged in substantial gainful activity since January
26, 2008, and had the severe impairments of obesity, chronic pain disorder
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attributable to degenerative disc disease of the cervical and lumbar spines,
obstructive sleep apnea depressive disorder, anxiety disorder, atypical cognitive
disorder, and borderline intellectual functioning. The ALJ also found that none of
Jackson’s impairments or combination of impairments met or medically equaled
one of the listed impairments under Social Security Administration (“SSA”)
regulations.
The ALJ further found that Jackson’s statements concerning his impairments
and their impact on his ability to work were not entirely credible in light of the
degree of medical treatment required, discrepancies between Jackson’s assertions
and information contained in the documentary reports, Jackson’s medical history,
the findings made on examination, Jackson’s assertions concerning his ability to
work, and the reports of the reviewing, treating and examining physicians. The
ALJ also rejected Drs. Sutherland, Steward, and Mead’s and Ms. Jarrell’s opinions,
because they were considered “questionable and not fully credible.” (R. at 26-27.)
The ALJ also noted the existence of a prior ALJ decision regarding
Jackson’s disability status.
After reviewing the medical evidence, the ALJ
determined that it would be appropriate to adopt the previous ALJ finding that
Jackson had the RFC to perform light, unskilled work, with certain limitations.
The ALJ concluded that Jackson was unable to perform any past relevant work, but
could perform several jobs that exist in significant numbers in the national
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economy, and was therefore not disabled, as defined in the Act, from the alleged
onset date through the date of the decision.
Following the ALJ decision, Jackson submitted additional evidence to the
Appeals Council. The Appeals Council accepted three of these exhibits. The first
exhibit included treatment notes from Dr. Mead, dated December 14, 2009. Dr.
Mead indicated that Jackson was depressed and anxious, but was otherwise well
groomed, cooperative, had appropriate affect and normal speech, was fully
oriented, and had intact memory, judgment, and insight. (R. at 530.) Dr. Mead
indicated that Jackson’s treatment goals were to improve sleep and cope with
anxiety about finances. (Id.)
The second exhibit contained treatment notes from Dr. Sutherland ranging
from September 2009 through January 2010. Dr. Sutherland’s notes are not very
detailed, but they indicate that Jackson complained of back pain, hip pain, hand
pain, and bowel issues. Dr. Sutherland assessed Jackson as having chronic fatigue
syndrome, hemorrhoids, irritable bowel syndrome, epididymitis, right hand
polyneuralgia, hypertension, hypothyroidism, and left foot lateral malleolus
tendonitis. (R. at 531-536.)
The third exhibit contained treatment notes from Lawrence W. Bender,
D.O., dated January 3, 2010. Jackson complained to Dr. Bender of fever, chills,
and nausea.
(R. at 537.)
Dr. Bender noted impressions of prostatic gland
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enlargement, pyelonephritis, and low back syndrome. (Id.) Dr. Bender prescribed
a 14-day course of Levaquin and Pyridium. (R. at 538.)
Jackson contests the ALJ’s decision, arguing that it is not supported by
substantial evidence because the ALJ failed to properly evaluate the opinions of
Dr. Sutherland, Dr. Mead, Dr. McGuffin, and Dr. Hartman. Jackson further argues
that the ALJ improperly relied on prior findings from a different ALJ decision
from January 25, 2008.
Finally, Jackson argues that the additional evidence
submitted to the Appeals Council after the ALJ’s decision contradicts the ALJ’s
conclusion and was improperly disregarded by the Appeals Council.
The Commissioner argues that the ALJ fully considered the record and
properly applied the law in determining that Jackson retained the RFC to perform
work that existed in significant numbers in the national economy.
The
Commissioner contends that substantial evidence supports the ALJ’s evaluation of
the various medical opinions. The Commissioner further argues that the ALJ gave
appropriate weight to the prior ALJ’s RFC determination.
Finally, the
Commissioner argues that the Appeals Council properly disregarded the additional
evidence.
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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).
In assessing disability claims, the Commissioner applies a five-step
sequential evaluation process. The Commissioner considers whether the claimant:
(1) has worked during the alleged period of disability; (2) has a severe impairment;
(3) has a condition that meets or medically equals the severity of a listed
impairment; (4) could return to his past relevant work; and (5) if not, whether he
could perform other work present in the national economy.
See 20 C.F.R.
§§ 404.1520(a)(4) (2012). The fourth and fifth steps of the inquiry require an
assessment of the claimant’s RFC, which is then compared with the physical and
mental demands of the claimant’s past relevant work and of other work present in
the national economy. Id.; Johnson v. Barnhart, 434 F.3d 650, 653-54 (4th Cir.
2005).
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I must review the denial of benefits under the Act to ensure that the ALJ’s
findings of fact “are supported by substantial evidence and [that] the correct law
was applied.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial
evidence is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).
I must not reweigh the evidence or make credibility determinations because those
functions are left to the ALJ. Johnson, 434 F.3d at 653. “Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the [ALJ].” Id. (alteration in original)
(internal quotation marks and citation omitted).
Jackson first argues that the ALJ failed to give proper weight to the opinions
of Dr. Sutherland, Dr. Mead, Dr. McGuffin, and Dr. Hartman. An ALJ is required
to weigh medical opinions based on: “(1) whether the physician has examined the
applicant, (2) the treatment relationship between the physician and the applicant,
(3) the supportability of the physician’s opinion, (4) the consistency of the opinion
with the record, and (5) whether the physician is a specialist.” Johnson, 434 F.3d
at 654. While “[c]ourts often accord greater weight to the testimony of a treating
physician,” id. (internal quotation marks and citation omitted), the ALJ is not
required to do so “if a physician’s opinion is not supported by clinical evidence or
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if it is inconsistent with other substantial evidence.” Craig v. Chater, 76 F.3d 585,
590 (4th Cir. 1996). If the ALJ does not give the treating physician’s opinion
controlling weight, the ALJ must “give good reasons in [the] notice of
determination or decision for the weight [he or she] give[s] [the] treating source’s
opinion.” 20 C.F.R. §§ 404.1527(c)(2) (2012).
Here, the ALJ expressly stated that he gave no weight to Dr. Sutherland’s
opinion “due to the paucity of medical signs and laboratory findings contained in
the objective medical record.” The ALJ further observed that Dr. Sutherland’s
treatment notes revealed no significant abnormalities upon examination. While an
examination by Dr. Sutherland revealed degenerative disc disease and narrowing at
C3 through C6, there was no evidence of impingement, and an MRI revealed only
mild disc bulging but was otherwise unremarkable. The ALJ also considered
evidence regarding Jackson’s course of treatment, and determined that it was not
consistent with “what one would expect if the claimant was…truly disabled.” In
accordance with the regulations, the ALJ provided sufficient explanation for why
he gave no weight to Dr. Sutherland’s opinion. Accordingly, the ALJ was within
his discretion in declining to afford Dr. Sutherland’s opinion weight.
In regard to Dr. Mead’s opinion, the ALJ stated that it failed for a lack of
objective medical evidence. The ALJ considered Dr. Mead’s evaluations from
May 2008 and October 2009. The ALJ observed that Dr. Mead’s evaluation
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changed from a finding that Jackson had a fair to an unlimited ability to function to
a finding of poor or no ability to function “without there being a significant change
in the claimant’s mental status examination.” The ALJ is required to, among other
things, examine the “the supportability of the physician’s opinion.” See Johnson,
434 F.3d at 654. Accordingly, there was substantial evidence to support a finding
that Dr. Mead’s evaluations were inconsistent and not supported by objective
medical evidence, and therefore the ALJ was within his discretion in declining to
afford Dr. Mead’s opinion weight.
In regards to the opinions of Dr. McGuffin and Dr. Hartman, state agency
physicians, Jackson argues that the ALJ improperly disregarded overhead reaching
limitations that the two physicians identified after reviewing Jackson’s medical
record. The ALJ evaluated Dr. McGuffin and Dr. Hartman’s opinions in light of
the prior ALJ decision, Jackson’s medical records, and Jackson’s allegations
regarding his symptoms. After considering this evidence, the ALJ afforded their
opinions “some weight.” (R. at 27.) The ALJ’s evaluation of Dr. McGuffin and
Dr. Hartman’s opinions is supported by substantial evidence and in accordance
with SSA regulations. See 20 C.F.R. 404.1527(d)(4) (2012) (providing that the
more consistent a medical opinion is with the record as a whole, the more weight it
will generally be given).
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Next, Jackson argues that the ALJ improperly relied on prior findings from a
different ALJ decision from January 25, 2008. In accordance with Social Security
Acquiescence Ruling 00-1(4), “When adjudicating a subsequent disability claim
arising under the same…title of the Act as the prior claim, an adjudicator
determining whether a claimant is disabled during a previously unadjudicated
period must consider such a prior finding as evidence and give it appropriate
weight in light of all relevant facts and circumstances. In determining the weight to
be given such a prior finding, an adjudicator will consider such factors as: (1)
whether the fact on which the prior finding was based is subject to change with the
passage of time, such as a fact relating to the severity of a claimant's medical
condition; (2) the likelihood of such a change, considering the length of time that
has elapsed between the period previously adjudicated and the period being
adjudicated in the subsequent claim; and (3) the extent that evidence not
considered in the final decision on the prior claim provides a basis for making a
different finding with respect to the period being adjudicated in the subsequent
claim.” See Albright v. Comm’r of Soc. Sec. Admin., 174 F.3d 473 (4th Cir. 1999).
In this case, the ALJ adopted a 2008 finding by a different ALJ that Jackson
was limited to a range of light, unskilled work. Jackson first argues that because
the current ALJ found different severe impairments, reliance on the prior ALJ
decision is improper. Second, Jackson argues that because the prior ALJ decision
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was made before Dr. Mead’s mental evaluation, reliance on that decision is
improper. However, the existence of new severe impairments will not necessarily
lead to a different RFC finding. Moreover, the ALJ declined to afford Dr. Mead’s
medical opinion weight, and as previously discussed, the ALJ’s decision was in
accordance with SSA regulations. It is clear that in adopting the prior ALJ’s RFC
determination of light, unskilled work, the ALJ comprehensively considered
Jackson’s medical records from the relevant period of time under consideration.
The ALJ’s adoption of the ALJ’s RFC finding, in light of all relevant facts and
circumstances, is supported by substantial evidence.
Jackson’s final argument relates to additional evidence submitted to the
Appeals Council following the ALJ’s decision. On March 5, 2010, the ALJ denied
Jackson’s disability claim. Subsequently, on March 15, 2010, Jackson’s attorney
wrote to the Appeals Council, requesting review of the ALJ’s decision and asking
for a transcript of the ALJ hearing and copies of the medical evidence presented.
Over a year and a half later, on December 9, 2011, the Appeals Council sent
Jackson’s attorney a CD of the record and informed him that he could submit
within 25 days additional evidence that was new and material. At this point,
Jackson submitted additional evidence to the Appeals Council. On February 28,
2012, the Appeals Council denied Jackson’s request for review, and noted by
Order of that date that three medical reports were made part of the record. The
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three medical reports consisted of treatment notes submitted by Drs. Mead,
Sutherland, and Bender. In its decision, the Appeals Council said it reviewed the
additional evidence noted in its Order, but said that it did not provide a basis for
changing the ALJ’s decision.
Thereafter on October 9, 2012, several months after the present case had
been filed in this court, Jackson’s attorney wrote to the Appeals Council on
October 9, 2012, requesting that the Appeals Council reopen the February 28
decision or, in the alternative, prepare a supplemental certified record to include
evidence submitted with the Request for Review, but which was not admitted into
record.
Additionally, it appears that Jackson’s attorney submitted additional
evidence to the Appeals Council. On December 6, 2012, the Appeals Council sent
Jackson a letter, in which it declined to reopen the decision. (Def.’s Brief, Ex. 1,
ALJ Letter Dec. 6, 2012 (hereinafter “ALJ Letter”).) Moreover, the Appeals
Council concluded that “[t]he evidence previously returned by the Appeals Council
does not pertain to the period before the [ALJ] and was properly excluded from the
record.” (ALJ Letter.) The Appeals Council also noted that Jackson had received
a fully favorable DIB decision on November 2, 2012, based on an amended onset
date of disability of March 6, 2010.
Jackson first argues that the evidence considered by the Appeals Council
contradicts the ALJ’s decision. The Appeals Council, and this court, must consider
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new and material evidence submitted after the ALJ’s decision that is relevant to the
period on or before the date of the ALJ’s decision. 20 C.F.R. § 404.970(b) (2012);
see Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93, 96 (4th Cir.
1991) (holding that where Appeals Council considered additional evidence and
incorporates it into the record, the reviewing court must also consider the new
evidence as part of the record). This means that I must review the ALJ’s decision
in light of evidence that the ALJ never considered, see Ridings v. Apfel, 76 F.
Supp. 2d 707, 709 (W.D. Va. 1999), while also refraining from making factual
determinations, McGinnis v. Astrue, 709 F. Supp. 2d 468, 471 (W.D. Va. 2010).
Therefore, my review of the new evidence is limited to determining whether it “is
contradictory, presents material competing testimony, or calls into doubt any
decision grounded in the prior medical reports.” Davis v. Barnhart, 392 F. Supp.
2d 747, 751 (W.D. Va. 2005) (internal quotation marks and citations omitted). If
the new evidence creates a conflict, then a remand is warranted so that the
Commissioner can weigh and resolve the conflicting evidence. Id.
As stated, the Appeals Council considered three medical reports. Two of
these reports consisted of treatment notes from Dr. Mead and Dr. Sutherland.
These exhibits are largely cumulative of the evidence from Dr. Mead and Dr.
Sutherland that the ALJ considered, and the credibility of those medical opinions
would have been rejected for the same reasons that the ALJ rejected their other
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opinions, namely because they are not supported by objective findings or Jackson’s
treatment history. The third exhibit consisted of treatment notes from Dr. Bender.
Dr. Bender’s notes suggest that Jackson suffered from low back syndrome, which
might support Jackson’s allegations that he is disabled due to back problems.
However, Dr. Bender did not opine that Jackson’s back problems were disabling,
and Dr. Bender does not appear to have prescribed any treatment for Jackson’s
back problems. Therefore, I find that none of the evidence considered by the
Appeals Council contradicts the ALJ’s decision.
Jackson also argues that the evidence submitted to the Appeals Council, but
which was returned to Jackson’s attorney, contradicts the ALJ’s decision. Pursuant
to the sixth sentence of 42 U.S.C.A § 405(g) (West 2011), the court may “at any
time order additional evidence to be taken before the Commissioner . . . but only
upon a showing that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in a prior
proceeding.” Therefore, if the additional evidence not considered by the Appeals
Council would have been material to the Commissioner’s decision, I could remand
the case so that the Commissioner could weigh and resolve the conflicting
evidence. Id. In this case, although Jackson has referenced and briefly described
the additional evidence in his brief, Jackson has not submitted the evidence for me
to consider. I therefore cannot find that a remand is warranted.
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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: July 22, 2013
/s/ James P. Jones
United States District Judge
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