Swiney v. Colvin
Filing
15
MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 07/13/2015. (Bordwine, Robin)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
STEPHANIE A. SWINEY,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant
)
)
)
)
)
)
)
)
)
Civil Action No. 2:14cv00011
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Stephanie A. Swiney, (“Swiney”), filed this action challenging the
final decision of the Commissioner of Social Security, (“Commissioner”),
determining that she was not eligible for disability insurance benefits, (“DIB”),
under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West
2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is
before the undersigned magistrate judge by transfer based on consent of the parties
pursuant to 28 U.S.C. § 636(c)(1). Oral argument has not been requested;
therefore, the matter 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
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“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
(4th Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is Asubstantial evidence.’”” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Swiney protectively filed an application for DIB on
September 20, 2010, alleging disability as of September 2, 2010, due to lower
lumbar spine fusion with rods and screws, degenerative disc disease, anxiety, panic
disorder, agoraphobia, depression, insomnia and panic attacks. (Record, (“R.”), at
187, 190-91, 201, 205.) The claim was denied initially and on reconsideration. (R.
at 107-09, 113-15, 118, 119-21, 123-25.) Swiney then requested a hearing before
an administrative law judge, (“ALJ”), (R. at 126-27), and a hearing was held on
October 31, 2012, at which Swiney was represented by counsel. (R. at 36-66.)
By decision dated December 21, 2012, the ALJ denied Swiney’s claim. (R.
at 13-28.) The ALJ found that Swiney met the nondisability insured status
requirements of the Act for DIB purposes through December 31, 2014. (R. at 15.)
The ALJ also found that Swiney had not engaged in substantial gainful activity
since September 2, 2010, her alleged onset date. (R. at 15.) The ALJ found that the
medical evidence established that Swiney suffered from severe impairments,
namely status-post L5 laminectomy and L5/S1 interbody fusion surgery, anxiety
disorder, panic disorder and depression, but he found that Swiney did not have an
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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 15-17.) The ALJ found
that Swiney had the residual functional capacity to perform sedentary work, 1 which
did not require more than occasional kneeling, crouching and stooping and that
allowed an option to alternate between periods of sitting and standing throughout
the day. (R. at 17.) The ALJ further found that Swiney was limited to performing
short, simple instructions. (R. at 17.) The ALJ found that Swiney was unable to
perform any of her past relevant work. (R. at 27.) Based on Swiney’s age,
education, work history and residual functional capacity and the testimony of a
vocational expert, the ALJ found that jobs existed in significant numbers in the
national economy that Swiney could perform, including jobs as an assembler, a
packer/stuffer and an inspector/tester. (R. at 27-28.) Thus, the ALJ found that
Swiney was not under a disability as defined by the Act and was not eligible for
DIB benefits. (R. at 28.) See 20 C.F.R. § 404.1520(g) (2014).
After the ALJ issued his decision, Swiney pursued her administrative
appeals, (R. at 8), but the Appeals Council denied her request for review. (R. at 16.) Swiney 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
(2014). The case is before this court on Swiney’s motion for summary judgment
filed October 6, 2014, and the Commissioner’s motion for summary judgment filed
1
Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying items like docket files, ledgers and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking and standing
often is necessary in carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met. See 20 C.F.R. § 404.1567(a) (2014).
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December 10, 2014.
II. Facts
Swiney was born in 1975, (R. at 38), which classifies her as a “younger
person” under 20 C.F.R. § 404.1563(c). She has a high school education and past
relevant work experience as a bailiff and a bank teller. (R. at 38, 206.) Swiney
stated that Prozac and Xanax were somewhat helpful, but she continued to have
panic attacks. (R. at 51.)
John Newman, a vocational expert, also was present and testified at
Swiney’s hearing. (R. at 61-65.) Newman classified Swiney’s past work as a bailiff
as light2 and semi-skilled and her job as a bank teller as light and skilled. (R. at 62.)
Newman was asked to consider a hypothetical individual of Swiney’s age,
education and work history, who had the residual functional capacity to perform
sedentary work that did not require more than occasional kneeling, crouching,
climbing and stooping, that allowed a sit/stand option, which allowed her to be
able to move in place while in a seated position or briefly rise from a seated
position to a standing position throughout the day and that did not require her to
perform tasks involving more than short and simple instructions. (R. at 62-63.)
Newman stated that a significant number of jobs existed that such an individual
could
perform,
including
jobs
as
2
an
assembler,
a
packer
and
an
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 an individual can perform light work,
she also can perform sedentary work. See 20 C.F.R. § 404.1567(b) (2014).
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inspector/tester/sorter. (R. at 63.) Newman stated that if the individual was
seriously limited in her ability to maintain attention and concentration, to deal with
work stress, to complete simple job instructions, to relate in social situations and to
demonstrate reliability, that these limitations would be below what is required for
unskilled work. (R. at 64-65.)
In rendering his decision, the ALJ reviewed medical records from Dickenson
County Public Schools; Dr. Craig S. Graul, D.O.; Jo McClain, P.C., a state agency
psychologist; Dr. Alison Whitman, M.D.; Lonesome Pine Hospital; Johnston
Memorial Hospital; Patrick N. Farley, Ed.D., a licensed professional counselor;
John Powell, P.A.-C., a certified physician’s assistant; Dr. Michael Hartman, M.D.,
a state agency physician; B. Wayne Lanthorn, Ph.D., a licensed clinical
psychologist; Dr. Thomas Henretta, M.C., a state agency physician; Joseph Leizer,
Ph.D., a state agency psychologist; Dr. Jim C. Brasfield, M.D.; Dr. Thomas G.
Sutton, M.D., of the University of Virginia Pain Management Center; and Dr.
Sachdev Somiah, M.D., a psychiatrist. Swiney’s attorney submitted additional
medical records from Farley, Dr. Somiah, Dr. V. Kumar, M.D., and Dr. Whitman
to the Appeals Council.3
In October 2007, Swiney underwent an L5 posterior interbody infusion for
lumbar degenerative disc disease. (R. at 333, 356.) Follow-up treatment notes
3
Since the Appeals Council considered and incorporated this additional evidence into the
record in reaching its decision, (R. at 1-6), this court must also take these new findings into
account when determining whether substantial evidence supports the ALJ's findings. See Wilkins
v. Sec'y of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).
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reflected that her condition was improving. (R. at 331.)
The record shows that Swiney was treated by Dr. Craig S. Graul, D.O., from
2007 through 2010 for complaints of depression, anxiety and low back pain. (R. at
491-595.) In January 2009, Swiney reported that she was feeling fine. (R. at 545.)
In June 2009, and again in June 2010, Swiney reported that her anxiety was
improving with medication. (R. at 551, 588, 590.)
On March 12, 2010, Swiney saw Dr. Alison Whitman, M.D., for complaints
of depression and anxiety. (R. at 565.) Swiney reported that she was recently
injured and working a desk job, and she feared that her boss would not be rehired,
resulting in the loss of her job. (R. at 565.) In April 2010, Swiney told Dr.
Whitman that she still had not heard if she was able to keep her job or not and that
she could not tell that she even cared about the job anymore. (R. at 569.) On May
15, 2010, Swiney presented to the emergency room at Lonesome Pine Hospital,
(“Lonesome Pine”), for complaints of anxiety attacks. (R. at 390-99.) Swiney’s
affect was anxious. (R. at 391.) She was diagnosed with acute anxiety and panic
attack. (R. at 391.) On May 21, 2010, Swiney presented to the emergency room at
Johnston Memorial Hospital for complaints of anxiety and noncardiac chest pain.
(R. at 416-36.) Swiney reported that Xanax eliminated her symptoms. (R. at 417.)
Her behavior, mood and affect were within normal limits. (R. at 418.) A chest xray was normal. (R. at 421.) Swiney’s symptoms had “markedly improved” after
treatment. (R. at 419.)
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In July 2010, Swiney stated that she was very anxious and nervous. (R. at
608.) Dr. Whitman recommended counseling, noting that Swiney had a very
difficult marriage and that she fought with her mother-in-law. (R. at 608.) In
August 2010, Swiney continued to experience anxiety attacks. (R. at 612, 615.) In
September 2010, Swiney had a normal affect and demeanor. (R. at 633.) On
October 5, 2010, Swiney presented to the emergency room at Lonesome Pine with
complaints of a racing heart. (R. at 455-66.) A chest x-ray was normal. (R. at 465.)
Swiney was diagnosed with an anxiety attack. (R. at 456.) On October 7, 2010,
Swiney called Dr. Whitman’s office complaining that she was still having panic
attacks. (R. at 629.) She was told that a law firm had sent Dr. Whitman’s office a
disability form and that it would be completed at her next appointment, at which
point Swiney became very calm. (R. at 629.)
On October 15, 2010, Swiney saw Dr. Whitman to have disability forms
completed. (R. at 640.) On examination, Swiney’s back had full range of motion
with no tenderness to palpation of the spine. (R. at 642.) Straight leg-raising tests
were negative bilaterally. (R. at 642.) Dr. Whitman, completed a mental
assessment indicating that Swiney had an unlimited ability to maintain personal
appearance and a satisfactory ability to follow work rules, to function
independently and to understand, remember and carry out simple job instructions.
(R. at 645-47.) She opined that Swiney had a seriously limited ability to interact
with supervisors and to understand, remember and carry out detailed instructions.
(R. at 645-46.) Dr. Whitman found that Swiney had no useful ability to relate to
co-workers, to deal with the public, to use judgment, to deal with work stresses, to
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maintain attention/concentration, to understand, remember and carry out complex
instructions, to behave in an emotionally stable manner, to relate predictably in
social situations and to demonstrate reliability. (R. at 645-46.) She opined that
Swiney would miss more than two workdays a month. (R. at 647.)
That same day, Dr. Whitman completed a medical assessment indicating that
Swiney could occasionally lift and carry items weighing up to 10 pounds and
frequently lift and carry items weighing up to five pounds. (R. at 648-50.) She
opined that Swiney could stand and/or walk a total of two hours in an eight-hour
workday and that she could do so for up to five minutes without interruption. (R. at
648.) Dr. Whitman found that Swiney could sit for one hour in an eight-hour
workday and that she could do so for up to one hour without interruption. (R. at
649.) She opined that Swiney could never climb, stoop, kneel, balance, crouch or
crawl and that she was limited in her ability to reach, to handle and to push/pull.
(R. at 649.) Dr. Whitman found that Swiney was restricted from working around
heights, moving machinery, noise and vibration. (R. at 650.) She also opined that
Swiney would miss more than two days of work a month. (R. at 650.)
Treatment notes from Dr. Whitman for the period November 2010 through
December 2011 consistently reflect that Swiney was ambulatory with a steady gait,
that her back had full range of motion with no tenderness on palpation of the spine
and that straight leg raising tests were negative bilaterally. (R. at 947, 959, 965,
1030, 1045, 1051, 1074, 1077.) Swiney’s psychiatric assessments repeatedly
showed throughout this period that Swiney had a normal affect and demeanor and
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that she was alert and oriented. (R. at 947, 1045, 1051, 1074, 1077.) On November
15, 2010, Swiney reported doing much better. (R. at 1028.) Dr. Whitman noted that
disability forms were completed with Swiney’s assistance. (R. at 1028.) On
January 3, 2011, it was noted that Swiney’s anxiety was stable. (R. at 964.) On
February 21, 2011, Swiney reported that her panic attacks had improved. (R. at
1006.) On April 1, 2011, Swiney reported to Dr. Whitman that her anxiety was
doing well. (R. at 991.) On May 5, 2011, Swiney reported that medication was
helping her symptoms of fibromyalgia and anxiety. (R. at 945.) On November 8,
2011, Swiney’s anxiety was noted as stable. (R. at 1072.) She reported that her
pain medication gave her enough relief to tolerate her activities of daily living. (R.
at 1072.)
On January 6, 2012, Dr. Whitman completed a mental assessment indicating
that Swiney had a limited, but satisfactory, ability to follow work rules and to
maintain personal appearance. (R. at 1086-88.) She opined that Swiney had a
seriously limited ability to relate to co-workers, to deal with the public, to use
judgment, to interact with supervisors, to function independently, to understand,
remember and carry out simple job instructions, to behave in an emotionally stable
manner, to relate predictably in social situations and to demonstrate reliability. (R.
at 1086-87.) Dr. Whitman opined that Swiney had no useful ability to deal with
work stresses, to maintain attention/concentration and to understand, remember
and carry out complex and detailed instructions. (R. at 1086-87.) She opined that
Swiney would be absent from work more than two days a month. (R. at 1088.)
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On January 9, 2012, Dr. Whitman completed a medical assessment
indicating that Swiney could occasionally and frequently lift and carry items
weighing up to five pounds. (R. at 1090-92.) She opined that Swiney could stand
and/or walk a total of less than two hours in an eight-hour workday and that she
could do so for less than 20 minutes without interruption. (R. at 1090.) Dr.
Whitman found that Swiney could sit for less than two hours in an eight-hour
workday and that she could do so for less than 15 minutes without interruption. (R.
at 1091.) She opined that Swiney could never climb, stoop, kneel, crouch or crawl
and occasionally balance. (R. at 1091.) Swiney was limited in her ability to reach,
to feel and to push/pull. (R. at 1091.) Dr. Whitman found that Swiney was
restricted from working around heights, moving machinery and vibration. (R. at
1092.) She also opined that Swiney would be absent from work more than two
days a month. (R. at 1092.)
Treatment notes from Dr. Whitman for the period May 2012 through
January 2013 consistently show that Swiney had full range of motion in her lower
extremities without pain, normal gait and normal neurologic examinations, with
normal strength in the lower extremities. (R. at 1154, 1158, 1162, 1166, 1170,
1194.) Psychiatric assessments also show that anxiety, depression and mood
changes were not present. (R. at 1153, 1157, 1161, 1165, 1168, 1193, 1203.)
During this time period, Swiney reported symptom control with medication, and it
was noted that Swiney showed no signs of anxiety or depression. (R. at 1152,
1157, 1161, 1192.)
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On August 26, 2010, Patrick N. Farley, Ed.D., a licensed professional
counselor, evaluated Swiney upon referral from Dr. Whitman. (R. at 659-60.)
Swiney complained of anxiety, depression and panic episodes. (R. at 659.) She
reported that her main stressors were her struggle to work, to deal with stressors
and to cope with life in general. (R. at 659.) Farley found no indication of
psychosis. (R. at 660.) Swiney denied hallucinations or delusions. (R. at 660.) Her
thought content was rational and coherent. (R. at 660.) Swiney’s short-term
memory and concentration appeared slightly impaired. (R. at 660.) She appeared
depressed and very anxious. (R. at 660.) Farley diagnosed panic disorder with
agoraphobia and major depression, recurrent, mild-moderate. (R. at 660.) Farley
assessed Swiney’s then-current Global Assessment of Functioning, (“GAF”),
score4 at 55.5 (R. at 660.)
On September 3, 2010, Swiney reported panic attacks. (R. at 658.) Farley
reported that Swiney’s condition was deteriorating. (R. at 658.) He diagnosed
panic disorder with agoraphobia and mild, recurrent major depressive disorder. (R.
at 658.) On September 15, 2010, Swiney reported panic attacks. (R. at 657.) Dr.
Farley reported that Swiney’s condition was deteriorating. (R. at 657.) He again
diagnosed panic disorder with agoraphobia and mild, recurrent major depressive
4
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).
5
A GAF score of 51-60 indicates that the individual has “[m]oderate symptoms... OR
moderate difficulties in social, occupational, or school functioning....” DSM-IV at 32.
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disorder. (R. at 657.) On September 24, 2010, Swiney reported that her panic
attacks were increasing and that she sometimes experienced more than one a day.
(R. at 656.) Her diagnoses remained unchanged. (R. at 656.) On October 15, 2010,
Swiney reported that she continued to experience up to four panic attacks a week.
(R. at 655.) She reported that the medication was not helping her. (R. at 655.) On
November 7, 2010, Farley continued to report that Swiney’s condition was
deteriorating and that she was unable to work. (R. at 654.) He assessed Swiney’s
then-current GAF score at 50, 6 with her highest GAF score being 85 7 within the
past year. (R. at 654.) Farley diagnosed panic disorder with agoraphobia. (R. at
654.)
On November 1, 2010, Farley completed a mental assessment indicating that
Swiney had a seriously limited, but not precluded, ability to follow work rules, to
relate to co-workers, to interact with supervisors, to function independently, to
understand, remember and carry out simple job instructions, to maintain personal
appearance, to behave in an emotionally stable manner and to relate predictably in
social situations. (R. at 651-53.) He also opined that Swiney had no useful ability
to deal with the public, to use judgment, to deal with work stresses, to maintain
attention/concentration, to understand, remember and carry out complex and
6
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.
7
A GAF score of 81-90 indicates that the individual has “[a]bsent or minimal symptoms
…, good functioning in all areas, interested and involved in a wide range of activities, socially
effective, generally satisfied with life, no more than everyday problems or concerns….” DSM-IV
at 32.
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detailed instructions and to demonstrate reliability, (R. at 651-52.) He opined that
Swiney would miss more than two days of work a month. (R. at 653.)
On September 6, 2011, Farley completed another mental assessment finding
that Swiney had a seriously limited, but not precluded, ability to follow work rules,
to relate to co-workers, to interact with supervisors, to function independently, to
understand, remember and carry out detailed and simple job instructions, to
maintain personal appearance and to behave in an emotionally stable manner. (R.
at 1037-39.) He also opined that Swiney had no useful ability to deal with the
public,
to
use
judgment,
to
deal
with
work
stresses,
to
maintain
attention/concentration, to understand, remember and carry out complex
instructions, to relate predictably in social situations and to demonstrate reliability.
(R. at 1037-38.) Farley opined that Swiney would miss more than two days of
work a month. (R. at 1039.)
In March 2012, October 2012 and January 2013, Farley completed
additional medical source statements with essentially the same findings as his prior
findings. (R. at 1125-27, 1176-78, 1200-02.) On October 16, 2012, Swiney
reported that her symptoms of anxiety had not improved and that she still
experienced panic attacks. (R. at 1180.) Farley assessed Swiney’s then-current
GAF score at 45, with her highest score being 50 in the past year. (R. at 1180.)
Farley noted that Swiney had a poor prognosis on her ability to return to work. (R.
at 1180.)
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The record shows that Dr. Sachdev Somiah, M.D., a psychiatrist, treated
Swiney from October 2010 through June 2013 for panic disorder, with
agoraphobia. (R. at 884-87, 909, 1082-84, 1114, 1173-74, 1199, 1227-30.) On
November 22, 2010, Swiney reported that her panic attacks were under control. (R.
at 884.) She had normal judgment and intact memory. (R. at 884.) On April 11,
2011, Swiney reported an increase in panic attacks. (R. at 909.) She had normal
judgment and intact memory. (R. at 909.) On September 20, 2011, Swiney reported
feeling a “bit better.” (R. at 1083.) She noted no significant increase in panic
attacks. (R. at 1083.) On December 13, 2011, Swiney reported that her panic
attacks had worsened. (R. at 1082.) She had normal judgment and intact memory.
(R. at 1082.) On March 7, 2012, Swiney complained of anxiety. (R. at 1114.) On
May 30, 2012, Swiney reported a decrease in her anxiety symptoms. (R. at 1174.)
On August 22, 2012, Swiney reported a decrease in her panic attacks. (R. at 1173.)
On November 19, 2012, Swiney continued to report anxiety and depression.
(R. at 1199.) Dr. Somiah assessed Swiney’s then-current GAF score at 65.8 (R. at
1199.) On February 11, 2013, Swiney complained of depression. (R. at 1230.) She
had a blunt and depressed affect, anxious mood, intact memory and normal
judgment. (R. at 1230.) Dr. Somiah assessed her then-current GAF score at 70. (R.
at 1230.) From March 2013 through June 2013, Dr. Somiah noted Swiney’s mood
was euthymic, with appropriate affect and intact thought processes, judgment and
memory. (R. at 1227-29.) Dr. Somiah assessed her then-current GAF scores
8
A GAF score of 61-70 indicates “[s]ome mild symptoms ... OR some difficulty in
social, occupational, or school functioning ... but generally functioning pretty well ....” DSM-IV
at 32.
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between 60 and 70. (R. at 1227-29.)
On November 4, 2010, John Powell, P.A.-C., a certified physician’s assistant
with Pain Medicine Associates, P.C., saw Swiney for complaints of low back pain
following posterolateral instrumented fusion of the L5/S1. (R. at 662-63.) On
lower extremity examination, Swiney was neurologically intact, with no evidence
of sciatica or radiculopathy. (R. at 662.) Swiney walked with an unassisted, nonantalgic gait. (R. at 662.) Powell diagnosed chronic continued mechanical low
back pain following 2007 fusion. (R. at 663.) Powell recommended bilateral
sacroiliac joint injections. (R. at 663.) On April 19, 2011, it was noted that because
Swiney had so many psychological issues that predominated, it was not possible to
get a clear answer as to whether she benefited from the sacroiliac joint injection.
(R. at 927.) Powell ordered a repeat EMG study on Swiney’s lower extremities. (R.
at 927.) He noted that if these findings were normal, he did not perceive any
treatable neurological deficit. (R. at 927.) Swiney’s EMG study was normal. (R. at
976.)
On March 3, 2011, Dr. Michael Hartman, M.D., a state agency physician,
found that Swiney had the residual functional capacity to perform light work. (R. at
77-78.) He found that Swiney could occasionally climb ramps and stairs and stoop;
frequently balance, kneel, crouch and crawl; and never climb ladders, ropes or
scaffolds. (R. at 77-78.) Dr. Hartman found no manipulative, visual or
communicative limitations. (R. at 78.) He found that Swiney should avoid
concentrated exposure to extreme heat and cold, wetness, humidity and vibration
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and avoid even moderate exposure to hazards, such as machinery and heights. (R.
at 78.)
On March 7, 2011, Jo McClain, P.C., a state agency psychologist, completed
a Psychiatric Review Technique form, (“PRTF”), finding that Swiney suffered
from an anxiety-related disorder. (R. at 75.) She opined that Swiney was
moderately restricted in her activities of daily living, in maintaining social
functioning and in maintaining concentration, persistence or pace. (R. at 75.)
McClain opined that Swiney had not experienced repeated episodes of
decompensation of extended duration. (R. at 75.)
That same day McClain completed a mental assessment finding that Swiney
was moderately limited in her ability to carry out detailed instructions, to maintain
attention and concentration for extended periods, to work in coordination with or in
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 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 respond appropriately to changes in a work
setting and to travel in unfamiliar places or use public transportation. (R. at 79-80.)
McClain found that Swiney was markedly limited in her ability to interact
appropriately with the general public. (R. at 79.) She opined that, despite these
limitations, Swiney could perform simple work in a nonstressful environment. (R.
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at 80.)
On April 12, 2011, B. Wayne Lanthorn, Ph.D., a licensed clinical
psychologist, evaluated Swiney at the request of her attorney. (R. at 911-22.)
Swiney displayed a mixed affect. (R. at 916.) Lanthorn described her mood as
generally an agitated depression. (R. at 916.) The Wechsler Adult Intelligence
Scale - Fourth Edition, (“WAIS-IV”), was administered, and Swiney obtained a
full-scale IQ score of 75. (R. at 917.) Lanthorn diagnosed major depressive
disorder, single episode, moderate to severe; panic disorder without agoraphobia;
chronic pain disorder associated with both psychological factors and general
medical conditions; anxiety disorder with generalized anxiety; and borderline
intellectual functioning. (R. at 921.) He assessed Swiney’s then-current GAF score
at 50. (R. at 921.) Lanthorn found Swiney’s problems to be of “marked
consequence” which limited her ability to function in a work role. (R. at 922.)
That same day, Lanthorn completed a mental assessment indicating that
Swiney had a more than satisfactory ability to maintain personal appearance and a
limited, but satisfactory, ability to understand, remember and carry out simple
instructions and to maintain personal appearance. (R. at 924-26.) He indicated that
Swiney had a seriously limited ability to follow work rules, to relate to co-workers,
to use judgment, to interact with supervisors, to deal with work stresses, to
function independently, to maintain attention and concentration, to understand,
remember and carry out detailed instructions, to behave in an emotionally stable
manner, to relate predictably in social situations and to demonstrate reliability. (R.
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at 924-25.) Lanthorn found that Swiney had no useful ability to deal with the
public and to understand, remember and carry out complex instructions. (R. at 92425.) He opined that Swiney would be absent from work more than two days
monthly. (R. at 926.)
On June 16, 2011, Dr. Thomas Henretta, M.C., a state agency physician,
found that Swiney had the residual functional capacity to perform light work. (R. at
94-96.) He found that Swiney could occasionally climb ramps and stairs, balance,
stoop, kneel and crawl; frequently crouch; and never climb ladders, ropes or
scaffolds. (R. at 95.) Dr. Henretta found no manipulative, visual or communicative
limitations. (R. at 95.) He found that Swiney should avoid concentrated exposure
to extreme heat and cold, wetness, humidity and vibration and avoid even
moderate exposure to hazards, such as machinery and heights. (R. at 95-96.)
On June 24, 2011, Joseph Leizer, Ph.D., a state agency psychologist,
completed a PRTF finding that Swiney suffered from an anxiety-related disorder.
(R. at 92-93.) He opined that Swiney was mildly restricted in her activities of daily
living and moderately limited in maintaining social functioning and in maintaining
concentration, persistence or pace. (R. at 92.) Leizer opined that Swiney had not
experienced repeated episodes of decompensation of extended duration. (R. at 92.)
That same day, Leizer completed a mental assessment finding that Swiney
was moderately limited in her ability to understand, remember and carry out
detailed instructions, to maintain attention and concentration for extended periods,
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to perform activities within a schedule, maintain regular attendance and be
punctual within customary tolerances, 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 travel in unfamiliar places
or use public transportation and to set realistic goals or make plans independently
of others. (R. at 96-98.) He opined that, despite these limitations, Swiney could
perform simple, unskilled and nonstressful work. (R. at 98.)
On November 4, 2011, Dr. Thomas G. Sutton, M.D., of the University of
Virginia Pain Management Center, examined Swiney and diagnosed sacroiliac
pain and peripheral neuropathy of undetermined origin. (R. at 1058-62.) Dr. Sutton
noted that Swiney had normal range of motion. (R. at 1060.) She had normal
strength in both the upper and lower extremities. (R. at 1060.) Dr. Sutton noted that
Swiney had a normal mood and affect. (R. at 1060.) He offered sacroiliac joint
injections, but Swiney opted to wait on any procedural intervention. (R. at 1061.)
The record shows that Dr. V. Kumar, M.D., treated Swiney from February
2013 through June 2013 for complaints of low back pain and anxiety. (R. at 121625.) During this time, Swiney reported that her anxiety, lumbar pain and
fibromyalgia were controlled with medication. (R. 1216, 1218, 1221, 1224.)
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III. Analysis
The Commissioner uses a five-step process in evaluating DIB claims. See 20
C.F.R. § 404.1520 (2014); 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 her past relevant work; and 5) if not, whether
she can perform other work. See 20 C.F.R. § 404.1520. 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) (2014).
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).
Thus, it is the ALJ’s responsibility to weigh the evidence, including the
medical evidence, in order to resolve any conflicts which might appear therein.
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See Hays, 907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir.
1975). Furthermore, while an ALJ may not reject medical evidence for no reason
or for the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980),
an ALJ may, under the regulations, assign no or little weight to a medical opinion,
even one from a treating source, based on the factors set forth at 20 C.F.R. §
404.1527(c), if he sufficiently explains his rationale and if the record supports his
findings.
Swiney argues that the ALJ erred by making incomplete findings at step
three of the sequential evaluation process. (Plaintiff’s Memorandum In Support Of
Her Motion For Summary Judgment, (“Plaintiff’s Brief”), at 5-6.) In particular,
Swiney argues that the ALJ failed to provide support or an explanation of his
finding that her alleged mental impairments did not meet or equal a listed
impairment. (Plaintiff’s Brief at 6.) Swiney further argues that the ALJ erred by
improperly determining her residual functional capacity. (Plaintiff’s Brief at 6-9.)
After a review of the evidence of record, I do not find that substantial
evidence exists to support the ALJ’s finding with regard to Swiney’s residual
mental functional capacity. The ALJ must consider objective medical facts and the
opinions and diagnoses of both treating and examining medical professionals,
which constitute a major part of the proof of disability cases. See McLain v.
Schweiker, 715 F.2d 866, 869 (4th Cir. 1983). The ALJ must generally give more
weight to the opinion of a treating physician because that physician is often most
able to provide “a detailed, longitudinal picture” of a claimant’s alleged disability.
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20 C.F.R. § 404.1527(c)(2) (2014). However, “[c]ircuit precedent does not require
that a treating physician’s testimony ‘be given controlling weight.’” Craig v.
Chater, 76 F.3d 585, 590 (4th Cir. 1996) (quoting Hunter v. Sullivan, 993 F.2d 31,
35 (4th Cir. 1992) (per curiam)). In fact, “if a physician’s opinion is not supported
by clinical evidence or if it is inconsistent with other substantial evidence, it should
be accorded significantly less weight.” Craig, 76 F.3d at 590.
Swiney argues that the ALJ failed to sufficiently articulate his findings at
step three of the sequential process. She specifically argues that the ALJ did not
adequately explain the basis for his finding that she had only mild restrictions in
activities of daily living and social functioning and moderate difficulties in
maintaining concentration, persistence or pace. (Plaintiff’s Brief at 6.) Swiney
argues that the ALJ provided no support or explanation in support of these
findings. (Plaintiff’s Brief at 6.) I agree.
The ALJ noted that he was giving little weight to the opinions of Lanthorn
and Farley, stating that they were unsupported by the medical evidence as a whole.
(R. at 26.) The ALJ also gave little weight to the opinion of Dr. Whitman because
it was inconsistent with her own clinical findings, as well as the other clinical
findings in the record. (R. at 26.) The ALJ also noted that he was giving “some
weight” to the mental assessments of the state agency psychologists “to the extent
of the residual functional capacity assessment,” finding that Swiney was able to
maintain attention and concentration throughout an eight-hour workday for tasks
involving only short, simple instructions. (R. at 17, 26.)
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The medical evidence shows that, despite her improvement on medication,
Swiney’s mental health providers, as well as the state agency psychologists,
imposed greater limitations on her work-related mental abilities. Each of Swiney’s
mental health providers, with the exception of Dr. Whiteman, 9 found that she had a
seriously limited to no useful ability to interact with supervisors, to relate to coworkers, to deal with the public, to use judgment, to function independently, to
follow work rules, to deal with work stresses, to maintain attention/concentration
and to demonstrate reliability. (R. at 645-47, 651-52, 924-25, 1086-88, 1125-27,
1176-78, 1200-02.)
State agency psychologist McClain found that Swiney was moderately
limited in her ability to carry out detailed instructions, to maintain attention and
concentration for extended periods, to work in coordination with or in 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 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 respond appropriately to changes in a work
setting and to travel in unfamiliar places or use public transportation. (R. at 79-80.)
McClain found that Swiney was markedly limited in her ability to interact
appropriately with the general public. (R. at 79.) She opined that, despite these
9
On October 15, 2001, Dr. Whitman opined that Swiney had a limited, but satisfactory,
ability to follow work rules and to function independently, and on January 6, 2012, she opined
that Swiney had a limited, but satisfactory, ability to follow work rules. (R. at 645, 1086.)
-23-
limitations, Swiney could perform simple work in a nonstressful environment. (R.
at 79.)
Furthermore, state agency psychologist Leizer opined that Swiney was
moderately limited in her 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 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 travel in unfamiliar places or use
public transportation and to set realistic goals or make plans independently of
others. (R. at 96-98.) He opined that, despite these limitations, Swiney could
perform simple, unskilled and nonstressful work. (R. at 98.)
The state agency psychologists both opined that Swiney could perform
simple, unskilled and nonstressful work. (R. at 79, 98.) Such finding is consistent
with the findings of Lanthorn, who found that Swiney had a seriously limited
ability to deal with work stresses. (R. at 924.) While the ALJ found that Swiney
could perform sedentary work that involved performing only short, simple
instructions to accommodate her inability to maintain attention and concentration
throughout an eight-hour workday, he failed to address Swiney’s inability to deal
with work stresses. (R. at 17.) In fact, the only mental residual capacity limitation
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that he presented to the vocational expert was her inability to perform tasks that
involved more than short and simple instructions. (R. at 62-63.) While the
vocational expert identified jobs that existed that Swiney could perform within this
limitation, I do not find that substantial evidence exists to support the ALJ’s
finding that a significant number of jobs exist that Swiney could perform due to the
ALJ’s failure to include all of her mental residual capacity limitations. That being
said, I remand this case to the Commissioner for further development concerning
Swiney’s mental residual functional capacity.
For all of the reasons stated herein, I find that substantial evidence does not
supports the ALJ’s weighing of the medical evidence. I further find that the
evidence cited above does not provide substantial evidence supporting the ALJ’s
finding as to Swiney’s mental residual functional capacity and his finding that
Swiney was not disabled. An appropriate order and judgment will be entered.
ENTERED: July 13, 2015.
s/
Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE
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