Keen v. Colvin
Filing
15
MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 09/23/2015. (Bordwine, Robin)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
DANIEL L. KEEN,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant
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Civil Action No. 2:14cv00022
MEMORANDUM OPINION
By: PAMELA MEADE SARGENT
United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Daniel L. Keen, (“Keen”), filed this action challenging the final
decision of the Commissioner of Social Security, (“Commissioner”), denying his
claims for disability insurance benefits, (“DIB”), and supplemental security
income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A.
§§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is
pursuant to 42 U.S.C. §§ 405(g) and 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
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(4th Cir. 1966). “‘If there is evidence to justify a refusal to direct a verdict were the
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 Keen protectively filed his applications for SSI and
DIB on March 21, 2011, alleging disability as of January 13, 2011, due to
degenerative disc disease, numbness in both legs, severe headaches, carpal tunnel,
tremors, bipolar disorder, depression, anxiety and memory loss. (Record, (“R.”), at
73, 205-06, 209-15, 235, 239.) The claims were denied initially and upon
reconsideration. (R. at 73-84, 99-111, 127-29, 137, 139-41, 143-45, 146-48, 15052.) Keen then requested a hearing before an administrative law judge, (“ALJ”).
(R. at 153-54.) A hearing was held on November 16, 2012, at which Keen was
represented by counsel. (R. at 40-72.)
By decision dated December 7, 2012, the ALJ denied Keen’s claims. (R. at
22-34.) The ALJ found that Keen met the disability insured status requirements of
the Act for DIB purposes through December 31, 2014. (R. at 24.) The ALJ found
that Keen had not engaged in substantial gainful activity since January 13, 2011,
the alleged onset date. (R. at 24.) The ALJ found that the medical evidence
established that Keen had severe impairments, namely degenerative disc disease of
the lumbar, thoracic and cervical spine, depressive/affective disorder and an
anxiety disorder, but he found that Keen did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 24-26.) The ALJ
found that Keen had the residual functional capacity to perform the full range of
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sedentary1 work, except that he must stand and stretch every 30 minutes, can
occasionally reach overhead, stoop, crouch, kneel or climb ramps and stairs, can
never climb ladders, ropes or scaffolds, work around heights or use foot controls
and is limited to short, simple instructions with superficial interaction with others.
(R. at 26-32.) The ALJ found that Keen could not perform his past relevant work
as a survey helper, a furnace installer or a warehouse worker. (R. at 32.) Based on
Keen’s age, education, work history and residual functional capacity and the
testimony of a vocational expert, the ALJ found that a significant number of jobs
existed in the national economy that Keen could perform, including jobs as a
production worker, a packager and an inspector/tester/sorter. (R. at 33.) Thus, the
ALJ concluded that Keen was not under a disability as defined by the Act and was
not eligible for DIB or SSI benefits. (R. at 33-34.) See 20 C.F.R. §§ 404.1520(g),
416.920(g) (2015).
After the ALJ issued his decision, Keen pursued his administrative appeals,
but the Appeals Council denied his request for review. (R. at 1-5, 18.) Keen 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, 416.1481
(2015). This case is before this court on Keen’s motion for summary judgment
filed November 14, 2014, and the Commissioner’s motion for summary judgment
filed December 10, 2014.
1
Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking or standing is
often necessary in carrying out job duties. Jobs are sedentary if walking or standing are required
occasionally and other sedentary criteria are met. See 20 C.F.R. §§ 404.1567(a), 416.967(a)
(2015).
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II. Facts
Keen was born in 1967, (R. at 73), which classifies him as a “younger
person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). Keen has a high school
diploma and past work experience as a surveyor helper. (R. at 49.)
At his hearing, Keen testified that he experienced sharp pain in his left lower
back which ran down his leg into his foot. (R. at 51.) Keen also stated that he had
problems with his neck and severe headaches that lasted two or three days at a
time. (R. at 51.) Keen stated that he could not sit, stand or walk for more than one
hour at a time. (R. at 52.) Keen testified that his headaches prevented him from
concentrating at all. (R. 52.) Keen stated that his pain medication did help his pain
level, but it did not alleviate the pain. (R. at 53.) Keen also stated that he has to lie
down up to five hours a day. (R. at 58.)
Ashley Wells, a vocational expert, also was present and testified at Keen’s
hearing. (R. at 68-71.) Wells classified Keen’s work as a survery helper as
medium2 and semi-skilled. (R. at 68.) Wells classified Keen’s work as a furnace
installer and a warehouse worker as heavy 3 and unskilled. (R. at 68.) Wells was
asked to consider a hypothetical individual of Keens’s age, education and work
experience who was capable of performing sedentary work with the option of
standing and stretching every 30 minutes. (R. at 68-69.) She was asked to assume
Medium work involves lifting items weighing up to 50 pounds at a time with frequent
lifting or carrying of items weighing up to 25 pounds. If an individual can do medium work, he
also can do sedentary and light work. See 20 C.F.R. §§ 404.1567(c), 416.967(c) (2015).
2
3
Heavy work is defined as work that involves lifting no more than 100 pounds at a time
with frequent lifting or carrying of objects weighing up to 50 pounds. If an individual can do
heavy work, he also can do sedentary, light and medium work. See 20 C.F.R. §§ 404.1567(d),
416.967(d) (2015).
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this individual would be able to occasionally stoop, crouch, kneel, climb and reach
overhead, but would not be able to climb ladders, work at unprotected heights or to
use foot controls. (R. at 69.) The individual would be able to understand, remember
and carry out short, simple instructions throughout an eight-hour workday with
ordinary scheduled breaks and would be able to have superficial interaction with
others in the workplace. (R. at 69.)
Wells stated that such an individual could perform work as a production
worker, a packaging and filling machine operator and an inspector, tester or sorter.
(R. at 69-70.) Wells stated there would be no jobs for someone whose abilities
were unsatisfactory with regard to relating with co-workers, dealing with the
public, using judgment with the public and complex job instructions, and who had
no useful ability to deal with work stresses, to relate predictably in social situations
and to demonstrate reliability. (R. at 70-71.)
In rendering his decision, the ALJ reviewed medical records from Health
and Beauty Clinic; Dickenson Community Hospital; Dickenson County
Community Services; Dominion Health and Fitness; Cloverleaf Chiropractic;
Norton Community Hospital; Dr. Donald Williams, M.D., a state agency
physician; Jo McClain, PC, a state agency mental health professional; Dr. Joseph
Duckwall, M.D., a state agency physician; Dr. Uzma Ehtesham, M.D., a
psychiatrist; and Dr. Luciano D’Amato, M.D.
On July 23, 2004, Keen sought treatment at Norton Community Hospital’s
emergency room for a headache with nausea and vomiting. (R. at 303-04.) He was
given Phenergan and Toradol and discharged home. (R. at 304.)
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On August 5, 2005, an MRI was taken of Keen’s brain, which was reported
as normal. (R. at 314-15.) On September 15, 2005, an MRI of Keen’s cervical
spine showed mild multilevel degenerative disc disease without disc herniation or
significant central canal stenosis. (R. at 316.) There was some multilevel foraminal
stenosis shown. (R. at 316.)
Keen treated with Dr. Uzma Ehtesham, M.D., a psychiatrist, on September
14, 2005. (R. at 298-99.) Dr. Ehtesham stated that Keen was taking Valium for
problems with his “nerves” and complained of feeling shaky at times, sad and
frustrated. (R. at 298.) Keen complained of mood swings and racing thoughts. (R.
at 298.) Keen also stated that he suffered from headaches and hypertension. (R. at
298.) Dr. Ehtesham diagnosed Keen with bipolar disorder and a generalized
anxiety disorder. (R. at 299.) Dr. Ehtesham prescribed Trileptal and continued
Keen on Valium. (R. at 299.)
On January 11, 2008, Keen was treated for high blood pressure at Norton
Community Hospital’s emergency room. (R. at 318-35.) Keen treated at Cloverleaf
Chiropractic from January 31, 2008, to June 22, 2011, for complaints of lower
back and neck pain. (R. at 337-77, 495-555.) The chiropractor diagnosed pelvic
subulaxtion, sciatica, cervical subulaxtion and cervicalgia. (R. at 339.) Over this
time period, Keen reported that the chiropractic manipulations helped his pain. (R.
at 343, 345, 347, 349-50, 354, 356, 358-61, 371, 377, 496, 505, 507, 516, 520,
525-26, 528, 530, 533-35, 545-46, 548, 551-52.) Notes from from January 16,
2009, to May 13, 2011, show improving low back pain. (R. at 495-96, 498-552.)
Keen was seen at the Health and Beauty Clinic on January 14, 2011, for
complaints of low back, neck and left leg pain. (R. at 447-48.) Keen stated that he
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had not seen a doctor in more than a year. (R. at 447.) Keen reported he was
experiencing pain at a level of five on a 10-point scale. (R. at 447.) Keen also
complained of anxiety and depression. (R. at 447.) The physician, whose
handwriting is largely illegible, ordered x-rays of Keen’s back and prescribed
Lortab and Valium. (R. at 448.) X-rays taken on January 18, 2011, showed
degenerative changes in Keen’s lumbar, thoracic and cervical spine. (R. at 472-74.)
On January 28, 2011, Keen was diagnosed with uncontrolled hypertension,
gastroesophageal reflux disease, (“GERD”), tension headaches, low back and neck
pain and anxiety and depression. (R. at 450.) On February 11, 2011, Keen reported
that his insurance would not pay for him to receive an MRI of his back without
first attending physical therapy. (R. at 451.)
Keen received physical therapy at Dominion Health and Fitness from
February 15, to March 7, 2011. (R. at 379-92.) At discharge, Keen reported that his
neck and back pain had improved “just a little.” (R. at 379.) The discharge note
states that Keen’s functional ability to walk and stand were moderately limited, and
his ability to sit was mildly limited. (R. at 379.) Objective active range of motion
testing showed that Keen’s range of motion in his neck and lower back improved
some over the course of treatment. (R. at 379-80.) Keen discontinued therapy
because he thought he had suffered a hernia. (R. at 383.) Records from the
emergency room at Dickenson Community Hospital confirm that he sought
treatment on February 26, 2011, for severe pain in his right testicle. (R. at 397-99.)
Keen returned to the Health and Beauty Clinic on March 1, 2011,
complaining of right side testicular pain. (R. at 453.) Keen was diagnosed with a
right inguinal hernia. (R. at 454.) On March 25, 2011, Keen was referred for a
surgical consult for his hernia. (R. at 457.) On April 14, 2011, Keen complained of
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back and right groin pain of a nine on a 10-point scale. (R. at 459.) On May 12,
2011, Keen stated that his pain was a four on a 10-point scale. (R. at 461.)
Keen saw Dr. Luciano D’Amato, M.D., for surgical consult on May 4, 2011.
(R. at 485.) Based on his examination, Dr. D’Amato stated that Keen suffered a
pulled groin muscle instead of an inguinal hernia. (R. at 485, 488.)
Keen began attended counseling with Colby Ball and James Counts, both
QMHPs at Dickenson County Behavioral Health, on October 12, 2010. (R. at 42644, 579-90, 592.) Keen saw Ball on October 12, 2010, for complaints of depressive
disorder and generalized anxiety disorder. (R. at 437-42.) Ball placed Keen’s thencurrent Global Assessment of Functioning, (“GAF”), score4 at 55. 5 (R. at 438-39,
441.) Keen stated that his hours at work were “getting cut in half,” and he was
under stress and worry about paying his bills. (R. at 442.) Keen expressed an
interest in obtaining disability payments. (R. at 442.) On December 3, 2010, Keen
told Counts he was working part-time. (R. at 443.) Keen continued to report
depression and anxiety over financial issues due to being cut back to part-time
work and depression due to grief issues. (R. at 443.) Keen’s goals included
supportive counseling and discussion of his depression and anxiety. (R. at 443-44.)
On January 18, 2011, Keen told Counts that he was dealing “okay” with his
depression. (R. at 434.) He reported that his depression was not as bad. (R. at 434.)
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).
A GAF score of 51-60 indicates that the individual has “[m]oderate symptoms ... OR
moderate difficulty in social, occupational, or school functioning....” DSM-IV at 32.
5
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On February 28, 2011, Counts discussed applying for disability benefits with Keen
based on Keen’s statement that he was unsure if he could physically continue to
work. (R. at 431.) Keen stated that he continued to battle depression. (R. at 431.)
On March 28, 2011, Keen told Counts he was in constant pain due to physical
issues and suffered depression daily. (R. at 429-30.) On April 20, 2011, Counts
reported that Keen came to his counseling appointment walking with a cane. (R. at
427.)
On May 23, 2011, Counts’s notes make no mention of Keen using a cane.
(R. at 586-90.) Instead, Counts specifically states that Keen is at no risk of falls.
(R. at 589.) Counts did note that Keen complained of difficulty getting out of bed
and moving around. (R. at 587.) The note also states that Keen incorrectly told
Counts that Dr. D’Amato had said that his groin pain was coming from his back
problem. (R. at 587.) On June 22, 2011, Counts noted that Keen said he was
depressed because his disability claim had been denied. (R. at 584.) On July 20,
2011, Counts encouraged Keen to get out of the house more to combat his
depression. (R at 582.)
On September 28, 2011, Counts completed a Medical Assessment Of Ability
To Do Work-Related Activities (Mental), which stated that Keen had an
unsatisfactory ability or no useful ability to make all occupational, performance
and personal-social work adjustments. (R. at 592-94.) Counts did state that Keen
could follow simple job instructions for a short period of time. (R. at 593.) Counts
stated that these limitations were due, in part, to Keen’s subjective complaints of
disabling pain. (R. at 593.) It is important to note that Counts’s September 27,
2011, office note states that Keen assisted Counts in completing this form. (R. at
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596-97.) On November 30, 2011, Keen reported suffering from daily,
uncontrollable crying spells. (R. at 602.)
Based on his review of the medical evidence of record, Dr. Donald
Williams, M.D., a state agency physician, on May 31, 2011, stated that Keen was
capable of occasionally lifting and carrying items weighing up to 20 pounds and
frequently lifting and carrying items weighing up to 10 pounds. (R. at 79.) Dr.
Williams stated that Keen could stand and/or walk and sit for a total of six hours
in an eight-hour workday. (R. at 79.) He stated that Keen could occasionally climb
ramps and stairs, climb ladders, ropes and scaffolds, balance, stoop, kneel, crouch
and crawl and should avoid concentrated exposure to vibration, machinery and
heights. (R. at 79-80.)
Jo McClain, PC, a state agency mental health professional, completed a
Mental Residual Functional Capacity Assessment on June 6, 2011, stating that
Keen was moderately limited in his ability to understand, remember and carry out
detailed instructions, to maintain attention and concentration for extended periods,
to complete a normal workday and workweek without interruption from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods and to interact appropriately with
the general public. (R. at 80-82.) McClain stated, “In spite of limitations caused by
claimant’s anxiety and depression, he retains the ability to perform simple work
that limits interactions with [the] general public. (R. at 82.)
Keen was treated on August 17, 2011, at Dickenson Community Hospital’s
emergency room after being hit in the eye with a rock while doing yardwork. (R. at
558-60.)
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Based on his review of the medical evidence of record, Dr. Joseph
Duckwall, M.D., a state agency physician, on September 6, 2011, completed a
Residual Functional Capacity evaluation, stating that Keen was capable of
occasionally lifting and carrying items weighing up to 20 pounds and frequently
lifting and carrying items weighing up to 10 pounds. (R. at 118-20.) Dr. Duckwall
stated that Keen could stand and/or walk and sit for a total of six hours in an eighthour workday. (R. at 118.) Dr. Duckwall stated that Keen’s ability to push and pull
was limited in his lower extremities. (R. at 118.) He also stated that Keen’s ability
to reach overhead was limited. (R. at 119.) He stated that Keen could occasionally
climb ramps and stairs, balance, stoop, kneel and crouch and should avoid
concentrated exposure to vibration, machinery and heights. (R. at 118-20.) He
stated that Keen could never climb ladders, ropes and scaffolds or crawl. (R. at
118-19.)
Dr. Andrew Bockner, M.D., a state agency physician, completed a Mental
Residual Functional Capacity Assessment on September 6, 2011, stating that Keen
was moderately limited in his ability to understand, remember and carry out
detailed instructions, to maintain attention and concentration for extended periods,
to complete a normal workday and workweek without interruption from
psychologically based symptoms, to respond appropriately to changes in the work
setting and to perform at a consistent pace without an unreasonable number and
length of rest periods and to interact appropriately with the general public. (R. at
120-22.) Dr. Bockner stated that Keen was able to understand and remember
simple 1-2 step tasks, to work for at least two hours at a time between breaks and
be punctual and sustain regular attendance. (R. at 120-21.) He further stated that
Keen was able to set goals and to complete simple routines, to understand hazards
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and safety issues and to adapt adequately to changes and demands doing simple
work tasks. (R. at 122.)
The record also contains reports which purport to show that Keen returned to
treatment at the Health and Beauty Clinic from June 9, 2011, to Ocotober 29, 2012.
(R. at 612-37, 639-43, 653-67, 727-31.) Most of the notes of these visits are
undated and illegible. From reviewing the office notes, I cannot determine if any
physical examination of Keen occurred at any of these visits. On July 21, 2011,
Keen completed a Chronic Pain Assessment stating that his pain level before
medication was a four on a 10-point scale. (R. at 616.) On August 25, 2011, Keen
listed this pain level as six, (R. at 619), and on September 27, 2011, he listed this
pain level as a five. (R. at 620.) On each of these forms, Keen stated that his pain
medication was helping. (R. at 616, 619-20.) On October 25, 2011, Keen reported
that his pain level was a three on a 10-point scale and that his depression was doing
better since he began taking Celexa. (R. at 623, 625.) On November 22, 2011,
Keen reported that his pain level was a five, (R. at 628), and on December 20,
2011, he reported that his pain level was a six. (R. at 631.) He reported that his
pain was the same on January 18, 2011. (R. at 634.) On February 15, 2012, Keen
reported that his pain level was a two, (R. at 637), and on April 11, 2012, he
reported that his pain level was a three. (R. at 641.) On June 6, 2012, he reported
his pain level was a six. (R. at 656.) On July 10, 2012, he reported his pain level
was a four. (R. at 659.) On August 7, 2012, he reported his pain level was a five.
(R. at 662.) On September 4, 2012, he reported that his pain level was a four. (R. at
665.)
On October 1, 2012, Keen reported increased neck and back pain. (R. at
727.) He reported that his pain level was a seven. (R. at 729.) On October 29,
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2012, Keen reported less pain in his shoulder, neck, back and legs. (R. at 730-31.)
He reported his pain level was a five. (R. at 732.)
Keen saw Counts at Dickenson County Behavioral Health again on March
29, 2012. (R. at 645-46.) On this date, Keen told Counts he experienced constant
pain in his legs and back, which made it difficult for him to walk. (R. at 646.) On
April 16, 2012, Keen reported that he continued to be depressed due to an inability
to work due to chronic physical pain and limitations. (R. at 648.) On April 25,
2012, Keen complained of problems sleeping due to a constant stabbing pain in his
back. (R. at 651.) He also complained of pain radiating down his legs and arms. (R.
at 651.) On August 6, 2012, Keen complained of pain in his back, knees and feet,
which he said limited his mobility. (R. at 674.) On August 29, 2012, Keen stated
that he was upset at the “system” because he was still waiting on a decision on his
disability claim. (R. at 676.) On October 15, 2012, Keen reported that Celexa was
helping his depression. (R. at 725.) Keen stated that he continued to battle daily
depression, but that this was due to physical issues and not being able to physically
work. (R. at 725.) Keen said that it took him a long time to work on his car or do
any yard work. (R. at 725.)
In many of his reports, Counts notes that Keen complains of not having the
financial resources to seek additional medical treatment. On each of these
occasions, Counts advises Keen to seek treatment at the Health Wagon, a local free
clinic. In fact, many of Counts’s sessions appear to focus more on assisting Keen
with obtaining social services rather than any type of mental health counseling.
On October 1, 2012, Counts completed another Medical Assessment Of
Ability To Do Work-Related Activities (Mental), which stated that Keen had an
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unsatisfactory or no useful ability to make all occupational, performance and
personal-social work adjustments. (R. at 677-79.) Counts noted Keen’s statement
that he could no longer physically work due to disabling pain. (R. at 678.)
Phil Pack, M.S., a licensed psychological practitioner, completed a
consultative psychological evaluation of Keen at his counsel’s request on October
6, 2012. (R. at 693-98.) Pack noted that Keen drove the 45-minute trip to his office
by himself. (R. at 694.) He stated that Keen walked slowly “with a somewhat
stooped posture.” (R. at 694.) Keen told Pack that he had suffered from chronic
pain and restrictions on his physical functioning preventing work since he hurt his
back lifting firewood at home in January of 2010. (R. at 694.) Keen told Pack that
he had become overwhelmed when his father, mother and brother died within a 10month period in 1999 to 2000. (R. at 695.) Keen reported that he cared for his
father and mother at home before their deaths and was present when his brother
shot and killed himself while cleaning a gun. (R. at 695.) Keen admitted to longstanding use of marijuana, beginning at the age of eight, with his most recent use
two months earlier. (R. at 696.)
Pack noted that Keen was alert and oriented with intact long- and short-term
memory. (R. at 697.) He stated that Keen’s mood was pleasant and friendly, and
his affect was broad. (R. at 697.) Pack stated that Keen became tremulous and
tearful when talking about the deaths of his father, mother and brother. (R. at 697.)
Pack said that Keen described experiencing symptoms of post-traumatic stress
disorder, (“PTSD”), in regards to intrusive thinking, generalized symptoms of
anxiety and recurrent nightmares. (R. at 697.) Pace stated that Keen’s thought
processes were clear in form with no perceptual disturbance, and his judgment and
insight were fair. (R. at 697.)
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Pack diagnosed PTSD chronic, and dysthymic disorder. (R. at 698.) He
placed Keen’s GAF score at 60. Pack completed a Medical Assessment Of Ability
To Do Work-Related Activities (Mental), which stated that Keen had an unlimited
ability to function independently, to understand, remember and carry out simple
job instructions and to maintain personal appearance, a satisfactory ability to
follow work rules, to interact with supervisors, to maintain attention and
concentration, to understand, remember and carry out detailed, but not complex,
job instructions and to behave in an emotionally stable manner and either an
unsatisfactory or no useful ability to relate to co-workers, to deal with the public,
to use judgment with the public, to deal with work stresses, to understand,
remember and carry out complex job instructions, to relate predictably in social
situations and to demonstrate reliability. (R. at 700-01.) Pack listed no findings to
support this assessment. Pack also checked a box on a form stating that Keen’s
mental impairment met the listed impairment for an anxiety-related disorder, found
at 20 C.F.R. Part 404, Subpart P, Appendix No. 1, § 12.06. (R. at 704-07.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 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 his past relevant
work; and 5) if not, whether he can perform other work. See 20 C.F.R. §§
404.1520, 416.920. If the Commissioner finds conclusively that a claimant is or is
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not disabled at any point in this process, review does not proceed to the next step.
See 20 C.F.R. §§ 404.1520(a), 416.920(a) (2015).
Under this analysis, a claimant has the initial burden of showing that he is
unable to return to his past relevant work because of his 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. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B)
(West 2011 & West 2012); 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).
Keen argues that substantial evidence does not exist to support the ALJ’s
finding regarding his residual functional capacity. (Plaintiff’s Memorandum In
Support Of His Motion For Summary Judgment, (“Plaintiff’s Brief”), at 4-6.) In
particular, Keen argues that the ALJ erred by giving little weight to the mental
assessments of Counts and Pack. (Plaintiff’s Brief at 6.) Keen also argues that the
ALJ erred by improperly assessing the effect of pain on his ability to work.
(Plaintiff’s Brief at 6-7.) Based on my review of the record, I do not find Keen’s
arguments persuasive.
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
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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).
By decision dated December 7, 2012, the ALJ denied Keen’s claims. (R. at
22-34.) The ALJ found that Keen met the disability insured status requirements of
the Act for DIB purposes through December 31, 2014. (R. at 24.) The ALJ found
that Keen had not engaged in substantial gainful activity since January 13, 2011,
the alleged onset date. (R. at 24.) The ALJ found that the medical evidence
established that Keen had severe impairments, namely degenerative disc disease of
the lumbar, thoracic and cervical spine, depressive/affective disorder and an
anxiety disorder, but he found that Keen did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 24-26.) The ALJ
found that Keen had the residual functional capacity to perform the full range of
sedentary work, except that he must stand and stretch every 30 minutes, can
occasionally reach overhead, stoop, crouch, kneel or climb ramps and stairs, can
never climb ladders, ropes or scaffolds, work around heights or use foot controls
and is limited to short, simple instructions with superficial interaction with others.
(R. at 26-32.) The ALJ found that Keen could not perform his past relevant work
as a survey helper, a furnace installer or a warehouse worker. (R. at 32.) Based on
Keen’s age, education, work history and residual functional capacity and the
testimony of a vocational expert, the ALJ found that a significant number of jobs
existed in the national economy that Keen could perform, including jobs as a
production worker, a packager and an inspector/tester/sorter. (R. at 33.) Thus, the
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ALJ concluded that Keen was not under a disability as defined by the Act and was
not eligible for DIB or SSI benefits. (R. at 33-34.) See 20 C.F.R. §§ 404.1520(g),
416.920(g).
The determination of whether a claimant is disabled by pain or other
subjective symptoms is a two-step process under the Act. See Craig v. Chater, 76
F.3d 585, 594-95 (4th Cir. 1996); 20 C.F.R. §§ 404.1529(b), (c), 416.929(b), (c)
(2015). First, there must be objective medical evidence showing the existence of an
impairment that could reasonably be expected to produce the actual pain or other
symptoms, in the amount and degree alleged by the claimant. See Craig, 76 F.3d at
594-95. Only after the existence of such an impairment is established must the ALJ
consider the intensity and persistence of the claimant’s pain or symptoms and the
extent to which they affect the ability to work. See Craig, 76 F.3d at 595. Although
a claimant’s subjective allegations may not be discredited solely because they are
not substantiated by objective evidence of the pain or symptom itself or its
severity, they need not be accepted to the extent they are inconsistent with the
available evidence. See Craig, 76 F.3d at 595. Evidence of a claimant’s activities
as affected by the pain is relevant to the severity of the impairment. See Craig, 76
F.3d at 595.
Furthermore, an ALJ’s assessment of a claimant’s credibility regarding the
severity of pain is entitled to great weight when it is supported by the record. See
Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984). “[S]ubjective evidence of
pain cannot take precedence over objective medical evidence or the lack thereof.”
Parris v. Heckler, 733 F.2d 324, 327 (4th Cir. 1984) (citation omitted). Protection
of a claimant’s power to establish the existence of disabling pain even without
objective evidence of the pain’s severity ensures the claimant only the opportunity
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to persuade the ALJ; it does not, obviously, ensure a favorable result for the
claimant. As in the case of other factual questions, credibility determinations as to
a claimant’s testimony regarding his pain are for the ALJ to make. See Shively,
739 F.2d at 989-90 (affirming ALJ’s decision to discredit claimant’s testimony as
to pain that was out of proportion with objective evidence because the court was
persuaded that ALJ considered the testimony). To hold that an ALJ may not
consider the relationship between the objective evidence and the claimant’s
subjective testimony as to pain would unreasonably restrict the ALJ’s ability to
meaningfully assess a claimant’s testimony.
As stated above, the ALJ found that Keen could perform the full range of
sedentary work, except that he must stand and stretch every 30 minutes, can
occasionally reach overhead, stoop, crouch, kneel or climb ramps and stairs, can
never climb ladders, ropes or scaffolds, work around heights or use foot controls
and is limited to short, simple instructions with superficial interaction with others.
(R. at 26-32.) Keen argues that the ALJ improperly discredited his allegations of
chronic disabling pain in reaching his findings as to Keen’s residual functional
capacity and his ultimate determination that Keen was not disabled. Keen argues
that he suffers from severe pain that renders him unable to sit, stand, walk or
concentrate for prolonged periods. (Plaintiff’s Brief at 7.)
Regarding Keen’s allegations of disabling pain, the ALJ found that Keen’s
impairments, namely degenerative disc disease of the lumbar, thoracic and cervical
spine, depressive/affective disorder and an anxiety disorder, could reasonably be
expected to cause Keen’s alleged symptoms. (R. at 26-29.) Nonetheless, the ALJ
found that Keen’s statements regarding his symptoms were not credible to the
extent they were inconsistent with his residual functional capacity finding. (R. at
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29.) In support of this finding, the ALJ noted that Keen’s treatment had been
conservative in nature. (R. at 30.) The evidence of record shows that Keen has
been treated primarily by his general practitioners with medications for both his
back pain and mental impairments. (R. at 446-485, 612-667, 727-32.) The ALJ
also noted that the dosage and frequency of the medications Keen took for pain,
depression and anxiety have remained the same over time. (R. at 30.) In fact, the
ALJ noted that Keen had seen a specialist for his back pain on only one occasion
and had never seen a psychiatrist for his mental impairments. (R. at 30.) The ALJ
correctly noted that x-ray imaging of Keen’s spine showed only mild degenerative
changes. (R. at 27.) The ALJ also correctly noted that Keen repeatedly reported
that his medications helped his pain and depression. (R. at 28, 30.) The ALJ also
noted that Keen’s physical therapy and chiropractic treatment did not reveal any
severe restriction of movement, nor did it result in any restrictions or limitations on
his work-related abilities. (R. at 27-28.) Based on this, I find that the ALJ properly
analyzed Keen’s subjective complaints and that substantial evidence supports his
rejection of those complaints, insofar as they are inconsistent with his finding as to
Keen’s residual functional impairment.
I also find that substantial evidence supports the ALJ’s rejection of Counts’s
and Pack’s assessments of Keen’s work-related abilities. While Counts and Pack
are licensed mental health professionals, neither of them are licensed psychologists
or psychiatrists. From a review of Counts’s report, it appears that he offered little
in the way of psychological assessment or counseling. Furthermore, any
restrictions he placed on Keen’s work-related abilities appear to be based almost
wholly on Keen’s subjective complaints of disabling pain. As the ALJ pointed out,
Counts’s assessment of Keen’s GAF score at 55, or suffering from moderate
symptoms, is inconsistent with his assessment that Keen had an unsatisfactory or
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no useful ability to make all occupational, performance and personal-social work
adjustments. It also is important to note that Counts’s opinions were formed
without knowing that Keen had a long-standing history of marijuana use, as
reported to Pack.
Pack placed fewer severe restrictions on Keen’s work-related abilities, but,
as the ALJ pointed out, several of the more severe restrictions are inconsistent with
Pack’s findings in his narrative report. As the ALJ noted, Keen related well with
Pack and made no major complaints about getting along with or interacting with
others. Nonetheless, Pack found that Keen had an unsatisfactory or no useful
ability to relate to co-workers, to deal with the public and to relate predictably in
social situations. Also, Pack’s opinions were based on a one-time evaluation of
Keen.
Based on the above reasoning, I find that substantial evidence exists to
support the ALJ’s weighing of the medical evidence in determining Keen’s
residual functional capacity. I also conclude that substantial evidence supports the
ALJ’s finding that Keen was not disabled. An appropriate order and judgment will
be entered.
DATED:
September 23, 2015.
Pamela Meade Sargent
/s/
UNITED STATES MAGISTRATE JUDGE
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