Green v. Colvin
Filing
18
MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 09/22/2015. (Bordwine, Robin)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
RACHEL J. GREEN,
Plaintiff
)
)
)
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
Defendant
)
Civil Action No. 2:14cv00013
MEMORANDUM OPINION
By: PAMELA MEADE SARGENT
United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Rachel J. Green, (“Green”), filed this action challenging the final
decision of the Commissioner of Social Security, (“Commissioner”), determining
that she was not eligible for supplemental security income, (“SSI”), under the
Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 1381 et seq. (West 2012).
Jurisdiction of this court is pursuant to 42 U.S.C. § 1383(c)(3). This case is before
the undersigned magistrate judge upon transfer by consent of the parties pursuant
to 28 U.S.C. § 636(c)(1).
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the
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case before a jury, then there is “substantial evidence.’”” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Green protectively filed her application for SSI on
June 1, 2010, 1 alleging disability as of May 15, 2010, due to bipolar disorder,
manic depression, panic disorder and Crohn’s disease. (Record, (“R.”), at 12, 22932, 242, 246, 276.) The claim was denied initially and on reconsideration. (R. at
139-43, 144, 146-48, 150-52.) Green then requested a hearing before an
administrative law judge, (“ALJ”). (R. at 153-54.) A hearing was held on October
10, 2012, at which Green was represented by counsel. (R. at 29-49.)
By decision dated October 23, 2012, the ALJ denied Green’s claim. (R. at
12-22.) The ALJ found that Green had not engaged in substantial gainful activity
since June 1, 2010, the date of her application. (R. at 14.) The ALJ determined that
the medical evidence established that Green suffered from severe impairments,
including depression, bipolar disorder and panic disorder, but he found that Green
did not have an impairment or combination of impairments listed at or medically
equal to one listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 14-16.) The
ALJ found that Green had the residual functional capacity to perform light work2
that required no more than occasional climbing, balancing, stooping, kneeling,
crouching or crawling, no concentrated exposure to fumes, odors, dust, gases or
poor ventilation and no more than occasional interaction with the general public.
(R. at 16-20.) The ALJ found that Green was unable to perform her past work. (R.
at 20-21.) Based on Green’s age, education, past work experience and residual
1
The record shows that Green filed a prior application for SSI, which was denied by
ALJ decision dated May 14, 2010. (R. at 77-85.) Green, apparently, did not seek review of this
decision.
2
Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, she
also can perform sedentary work. See 20 C.F.R. § 416.967(b) (2015).
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functional capacity and the testimony of a vocational expert, the ALJ also found
that Green could perform jobs existing in significant numbers in the national
economy, including jobs as a housekeeping cleaner/hotel maid, a merchandise
marker/price marker and a deli cutter/slicer. (R. at 21.) Therefore, the ALJ found
that Green was not under a disability as defined under the Act and was not eligible
for benefits. (R. at 22.) See 20 C.F.R. § 416.920(g) (2015).
After the ALJ issued his decision, Green pursued her administrative appeals,
(R. at 8), but the Appeals Council denied his request for review. (R. at 1-5.) Green
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. § 416.1481 (2015). The
case is before this court on Green’s motion for summary judgment filed November
20, 2014, and the Commissioner’s motion for summary judgment filed January 26,
2015.
II. Analysis
Green was born in 1982, (R. at 225), which classifies her as a “younger
person” under 20 C.F.R. § 416.963(c). Green has a General Equivalency
Development diploma, (“GED”). (R. at 33.) She has prior work experience as a
school bus monitor. (R. at 34.) At her hearing, Green testified that she had
attempted to work other jobs, but she quit each of those jobs after no more than
three days due to her anxiety. (R. at 34-35.) She stated that she was treating with
both a psychiatrist and a counselor. (R. at 38.) Green also testified that, when she
has a flare-up of her Crohn’s disease, she is required to go to the bathroom at least
10 times a day. (R. at 39.)
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A. Hankins, a vocational expert, also was present and testified at Green’s
hearing. (R. at 45-48.) Hankins was asked to consider a hypothetical individual of
Green’s age, education and work experience, who could perform light work, but
who would be limited to no more than occasional climbing, balancing, stooping,
kneeling, crouching and crawling, who should avoid concentrated exposure to
fumes, odors, dust, gases and poor ventilation, and who should have no more than
occasional interaction with the general public. (R. at 45-46.) Hankins stated that
such an individual could not perform work as a school bus monitor due to the
limitation on interaction with the general public. (R. at 46.) He stated that such an
individual could perform jobs existing in significant numbers in the national
economy, including those of a housekeeping cleaner, such as a hotel maid, a
merchandise or price marker and a deli cutter or slicer. (R. at 46-47.) Hankins
stated that all jobs would be eliminated if the individual had no useful ability to
follow work rules, to relate to co-workers, to deal with the public, to use judgment
with the public, to interact with supervisors, to deal with work stresses, to maintain
attention and concentration, to behave in an emotionally stable manner, to relate
predictably in social situations and would be absent more than two days a month.
(R. at 47.)
In rendering his decision, the ALJ reviewed records from Richard J. Milan,
Jr., Ph.D., a state agency psychologist; Julie Jennings, Ph.D., a state agency
psychologist; Dr. Michael Hartman, M.D., a state agency physician; Dr. Donald
Williams, M.D., a state agency physician; Dr. Uzma Ehtesham, M.D., a
psychiatrist; Robert S. Spangler, Ed.D., a licensed clinical psychologist; Susan
Myers, L.C.S.W., a licensed clinical social worker; Norton Community Hospital;
Dr. Steven Vest, M.D.; Dr. Pauline Reed, M.D.; Dr. L.D. Amato, M.D.; Dr.
Thomas E. Roatsey, D.O.; and various pharmacy records.
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The Commissioner uses a five-step process in evaluating SSI claims. See 20
C.F.R. § 416.920 (2015); 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. § 416.920. If the Commissioner finds
conclusively that a claimant is or is not disabled at any point in this process, review
does not proceed to the next step. See 20 C.F.R. § 416.920(a) (2015).
Under this analysis, a claimant has the initial burden of showing that she is
unable to return to her past relevant work because of her impairments. Once the
claimant establishes a prima facie case of disability, the burden shifts to the
Commissioner. To satisfy this burden, the Commissioner must then establish that
the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience and impairments, to perform alternative jobs that exist
in the national economy. See 42 U.S.C.A. § 1382c(a)(3)(A)-(B) (West 2003 &
Supp. 2014); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall, 658
F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980).
Green argues that the ALJ erred by finding that her Crohn’s disease was not
a severe impairment. (Plaintiff’s Memorandum In Support Of Her Motion For
Summary Judgment, (“Plaintiff’s Brief”), at 5-6.) Green also argues that the ALJ
erred by improperly determining her residual functional capacity. (Plaintiff’s Brief
at 6-9.) In particular, Green argues that the ALJ improperly rejected all
psychological evidence of record as to her mental impairment’s effect on her workrelated abilities and improperly substituted his own opinions on this issue. (R. at
9.)
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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.
This 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.
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. §
416.927(c), if he sufficiently explains his rationale and if the record supports his
findings.
This court needs to look no further than the face of the ALJ’s opinion to find
error in this case. The Social Security regulations define a “nonsevere” impairment
as an impairment or combination of impairments that does not significantly limit a
claimant’s ability to do basic work activities. See 20 C.F.R. § 416.921(a) (2015).
Basic work activities include walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, handling, seeing, hearing, speaking, understanding, carrying out
and remembering simple job instructions, use of judgment, responding
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appropriately to supervision, co-workers and usual work situations and dealing
with changes in a routine work setting. See 20 C.F.R. §416.921(b) (2015). The
Fourth Circuit held in Evans v. Heckler, that “‘“[a]n impairment can be considered
as ‘not severe’ only if it is a slight abnormality which has such a minimal effect on
the individual that it would not be expected to interfere with the individual’s ability
to work, irrespective of age, education, or work experience.”’” 734 F.2d 1012,
1014 (4th Cir. 1984) (quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.
1984)) (citations omitted).
The ALJ found that Green did not suffer from a severe physical impairment.
(R. at 14-15.) Nonetheless, the ALJ placed restrictions on Green’s physical work
capacity by finding that she could perform only light work that required no more
than occasional climbing, balancing, stooping, kneeling, crouching or crawling and
no concentrated exposure to fumes, odors, dust, gases or poor ventilation. These
are more than “minimal” limitations. Since the ALJ has not identified any severe
physical impairment, the court cannot adequately determine whether the evidence
of record supports the finding. Thus, I find that the ALJ has not sufficiently
explained his finding to allow an appropriate review by this court. See Akers, 131
F.3d at 439-40.
In addition, I find that substantial evidence does not support the ALJ’s
decision with regard to Green’s mental residual functional capacity. Every mental
health expert who has considered the issue has opined that Green’s severe mental
impairments place greater restrictions on her work-related abilities than those
found by the ALJ. The only mental restriction the ALJ placed on Green’s workrelated abilities was that she could not perform work that required more than
occasional interaction with the general public.
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On April 16, 2010, Robert S. Spangler, Ed.D., a licensed psychologist,
performed a consultative psychological evaluation of Green at her counsel’s
request. (R. at 601-08.) According to Green, she suffered a panic attack on her
way to the evaluation. (R. at 601.) Spangler completed a Medical Assessment Of
Ability To Do Work-Related Activities (Mental), which stated that Green’s ability
to make all occupational, performance and personal-social adjustment was either
seriously limited or nonexistent. (R. at 606-08.) Spangler stated that these
restrictions were based on Green’s moderate to severe depression, moderate
anxiety and borderline intelligence. (R. at 608.) Spangler stated that Green would
be absent from work more than two days a month due to her mental impairment
and/or treatment. (R. at 608.) It is important to note, that while Spangler’s opinions
are based on Green obtaining a full-scale IQ score of 79, the test results contained
in his report stated that her full-scale IQ score was 69, which, if correct, would
place her in the intellectual disability range under the listed impairments. See 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C) (2015).
On September 9, 2010, state agency psychologist, Julie Jennings, Ph.D.,
completed a Mental Residual Functional Capacity evaluation based on her review
of the evidence of record. (R. at 97-99.) Jennings stated that Green was moderately
limited in her ability to maintain attention and concentration for extended periods,
to work in coordination with on in proximity to others without being distracted by
them, to interact appropriately with the general public, to accept instructions and
respond appropriately to criticism from supervisors, to get along with co-workers
or peers without distracting them or exhibiting behavioral extremes, to respond
appropriately to changes in the work setting, to travel in unfamiliar places or use
public transportation and to set realistic goals or make plans independently of
others. (R. at 98-99.) Jennings stated that these limitations were supported by the
evidence that Green suffered from bipolar disorder, anxiety and depression. (R. at
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98-99.) Jennings did state that Green could perform simple, unskilled, nonstressful
work. (R. at 99.)
On May 19, 2011, state agency psychologist, Richard J. Milan Jr., Ph.D.,
completed a Mental Residual Functional Capacity evaluation based on his review
of the evidence of record. (R. at 112-14.) Milan stated that Green was moderately
limited in her ability to carry out detailed instructions, to maintain attention and
concentration for extended periods, to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances, to work
in coordination with on in proximity to others without being distracted by them, to
interact appropriately with the general public, to accept instructions and respond
appropriately to criticism from supervisors, to get along with co-workers or peers
without distracting them or exhibiting behavioral extremes, to respond
appropriately to changes in the work setting, to travel in unfamiliar places or use
public transportation and to set realistic goals or make plans independently of
others. (R. at 113-14.) Milan stated that these limitations were supported by the
evidence that Green suffered from a history of bipolar disorder, anxiety and
depression. (R. at 114.) Milan did state that Green was capable of understanding,
recalling and carrying out simple, routine tasks with minimal social demands over
a normal workday/workweek. (R. at 114.)
Dr. Uzma Ehtesham, M.D., a psychiatrist, completed Medical Assessment of
Ability to Do Work-Related Activities forms on October 22, 2010, March 30,
2012, and September 21, 2012. (R. at 640-42, 679-81, 768-70.) Dr. Ehtesham
opined that Green had poor or no ability in nearly all work-related mental areas
based on decreased memory, decreased concentration, problems with social
functioning, anger issues, severe anxiety attacks, severe depression and sleep
problems. (R. at 640-41, 680, 768-69.)
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On April 3, and October 8, 2012, licensed clinical social worker Susan
Myers completed Medical Assessment of Ability to Do Work-Related Activities
Forms on which she, too, stated that Green had poor or no ability to make most
occupational, performance, and personal/social adjustments. (R. at 683-85, 79597.) She noted that Green was diagnosed with panic disorder and major depression,
recurrent, moderate, which resulted in Green’s inability to be employed, much less
make occupational adjustments. (R. at 683.) Myers wrote that Green’s memory,
concentration and attention continued to be seriously limited and that her ability to
adjust was poor. (R. at 684.) Myers stated that Green was unpredictable in
uncontrolled environments. (R. at 684.) Myers also opined that Green would be
absent from work more than two days a month. (R. at 685.)
While the ALJ must weigh the medical evidence, he may not simply
disregard uncontradicted expert opinions in favor of his own opinion on a subject
that he is not qualified to render. See Young v. Bowen, 858 F.2d 951, 956 (4th Cir.
1988); Wilson v. Heckler, 743 F.2d 218, 221 (4th Cir.1984).
It is for all of these reasons stated herein that I find that substantial evidence
does not support the ALJ’s denial of Green’s SSI claim. Therefore, I will enter an
appropriate order and judgment remanding this case to the Commissioner for
further consideration consistent with this Memorandum Opinion.
DATED:
September 22, 2015.
/s/
Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE
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