Raymond v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION. Signed by Magistrate Judge James P. Mazzone on 5/22/2023. (hrc)

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FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MAY 22 2023

TERRI ELAINE RAYMOND,

U.S. DISTRICT COURT-VVVND
WHEELING, WV 26003

Plaintiff,

CIVIL ACTION NO.: 1:22CV53
(KLEEH)

V.

KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
REPORT AND RECOMMENDATION
Introduction
This action arises out of the denial of Plaintiff's application for Supplemental Security
Income under Title II of the Social Security Act. R. 15-36. Plaintiff claims that the AU J erred in
several respects and seeks relief, including reversal of the AL's unfavorable decision, or in the
alternative, remand for further proceedings. ECF No. 14-1.
Factual/Procedural History
Plaintiff filed her application on April 16, 2020. She alleged a disability date of
February 12, 2018. R. 15. Plaintiff's claim was denied initially and upon reconsideration.
R. 86-123, 128-48. An administrative hearing was held on September 27, 2021. R. 15, 42-57. At
the hearing, Plaintiff amended her alleged onset date to January 1,2020. R. 15.
On October 20, 2021, the AU J issued an unfavorable decision. R. 15-36. The Appeals
Council denied Plaintiff's request for review, making the AL's decision the final decision of the
Commissioner. R. 1-6. Plaintiff then filed the instant action. ECF No. 1.

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III.

AU J Decision
A. The Five-Step Evaluation Process
To be disabled under the Social Security Act, a claimant must meet the following criteria:
An individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work....'[W]ork which exists in the national
economy' means work which exists in significant numbers either in the region
where such individual lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B). The Social Security Administration uses the following
five-step sequential evaluation process to determine if a claimant is disabled:
At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled.
At the second step, we consider the medical severity of your impairment(s). If
you do not have a severe medically determinable physical or mental impairment that
meets the duration requirement . . . or a combination of impairments that is severe
and meets the duration requirement, we will find that you are not disabled.
At the third step, we also consider the medical severity of your impairments(s).
If you have an impairment(s) that meets or equals one of our listings. . . and meets
the duration requirement, we will find that you are disabled.
[Before the fourth step, the residual functioning capacity of the claimant is evaluated
based "on all the relevant medical and other evidence in your case record . . ." 20
C.F.R. §§ 404.1520; 416.920.]
At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant work, we
will find that you are not disabled.
At the fifth and last step, we consider our assessment of your residual functional
capacity and your age, education, and work experience to see if you can make an
adjustment to other work. If you can make an adjustment to other work, we will find
that you are not disabled. If you cannot make an adjustment to other work, we will
find that you are disabled.
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20 C.F.R. §§ 404.1520; 416.920. If the claimant is determined to be disabled or not disabled at
one of the five steps, the process does not proceed to the next step. Id.
B. AUJ Findings
The AU J found that Plaintiff had not engaged in substantial gainful activity since
April 16, 2020, or the application date. R. 17. At step two, the AU J found that Plaintiff has the
following severe impairments: fibromyalgia, bilateral hip impairment (trochanteric bursitis), spine
impairment (degenerative disc disease of the lumbar spine), left knee impairment, obesity, sleep
apnea, major depressive disorder (MDD), generalized anxiety disorder (GAD), and posttraumatic
stress disorder (PTSD). R. 18. The AUJ found at step three that Plaintiff does not have an
impairment or combination of impairments that meet or medically equal the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925
and 416.926). Id.
At step four, the AU J determined that Plaintiff has the following residual functional
capacity ("RFC"):
to perform sedentary work as defined in 20 CFR 416.967(a) with lifting and/or
carrying up to 10 pounds occasionally and less than 10 pounds frequently; standing
and/or walking up to 2 hour and sitting up to 6 hours in an 8-hour workday;
additionally, only occasional climbing ramps or stairs, balancing (as it is defined in
the SCO — the Selected Characteristics of Occupations defined in the Dictionary of
Occupational Titles), stooping, kneeling, crouching, or crawling; no climbing
ladders, ropes, or scaffolds; and only occasional exposure to cold or heat extremes,
wetness, vibration, respiratory irritants (such as fumes, odors, dust, gases, poorly
ventilated areas in concentrations higher than found in a typical household), and/or
workplace hazards (including unprotected heights and dangerous machinery). She
is limited to routine tasks in entry-level, unskilled work, with instructions that are
not involved; limited to low-stress work (defined as involving only occasional
independent decision making and/or changes in the work setting); requiring only
occasional interaction with the public, coworkers, and/or supervisors; and, as to
coworkers, only occasional tandem tasks.

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R. 22. At step five, the AU J found that, considering Plaintiff's age, education, work experience,
and residual functional capacity, there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform. R. 34.
IV.

Motions for Summary Judgment
A.

Arguments of the Parties
Plaintiff's Arguments

Plaintiff argues that the AL's opinion is not supported by substantial evidence because the
AU J failed to order a consultative psychological exam or a post-hearing psychological
consultation. Additionally, Plaintiff claims that the AU J erred because he failed to consider
Plaintiff's medical records from Potomac Highlands Guild from January 2021 — March 2021.
Finally, Plaintiff argues that the AU J erred in not defining the phrase "instructions that are not
involved" with respect to Plaintiff's RFC. Plaintiff asks that the AL's decision be reversed or,
alternatively, for this matter to be remanded for further proceedings.
Defendant's Arguments
Defendant argues that Plaintiff failed to meet the standards of disability within the Act and
Regulations. Defendant further argues that the AU J was not required to obtain a consultative
psychological examination to formulate Plaintiff's RFC, and that the record contained sufficient
evidence for the AU J to make his determination. Defendant maintains that the All's opinion
allows for meaningful review. Defendant argues that the AL's decision should be affirmed.

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B.

The Standards
Summary Judgment

"Summary Judgment is appropriate 'if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Lawson v.
Union Cty. Clerk of Court, 828 F.3d 239, 247 (491 Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).
Judicial Review
The Court's review of the All's decision is limited to determining whether the AU J applied
correct legal standards and whether the AL's factual findings are supported by substantial
evidence. Rogers v. Kijakazi, 62 F.4th 872, 875 (4th Cir. 2023).
"Substantial evidence" is "more than a mere scintilla of evidence but may be somewhat
less than a preponderance." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). "Substantial
evidence" is not a "large or considerable amount of evidence, but rather, "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood,
487 U.S. 552, 564-65 (1988) (internal citations and quotations omitted). "If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence'."
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966), overruled by implication on other grounds
by The Black and Decker Disability Plan v. Nord, 538 U.S. 822 (2003).
C.

Discussion

After considering the briefs of the parties, the applicable law, and the Court file, the
undersigned is satisfied that oral argument would not substantially aid this report and
recommendation. Accordingly, the undersigned would conclude that the AU J did not err by not
obtaining a consultative examination or using the phrase "instructions that are not involved" in

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Plaintiff's RFC, and the AU J considered Plaintiff's records from Potomac Highlands Guild from
January 2021 to March 2021. Therefore, substantial evidence supports the AL's decision.
1.

Consultative Exam

"Under the regulations, an AU J has discretion in deciding whether to order a consultative
examination." Thomason v. Colvin, 2016 WL 4447805, at * 3 (W.D.Va. July 29, 2016), citing
Bishop v. Barnhart, 78 Fed.Appx. 265, 268 (4 t Cir. 2003). An All may obtain a consultative
examination when the AU J cannot obtain the information needed from a claimant's medical
sources, to resolve an inconsistency in the evidence, or when the evidence is insufficient to support
a determination or decision on a claim. 20 C.F.R. § 416.919a. A consultative examination is not
necessary where other sources of evidence in the medical record support the AL's decision. See
Melton v. Colvin, 2016 WL 3525248, at * 7 (E.D.Va. June 1,2016).
Plaintiff argues that the AU J erred in not obtaining a psychological consultative
examination for Plaintiff because the State agency psychological consultant reports upon which
the AU J relied were dated September 2020 and December 2020, which predated the administrative
hearing by between ten and twelve months. Plaintiff argues that, during those months, additional
medical evidence was received on behalf of Ms. Raymond. Plaintiff notes specifically the
April 1, 2021, letter from Plaintiff's treatment provider, Jacque O'Neil, M.Ed., AADC, and the
June 15, 2021, completed medical statement from Ms. O'Neill. See ECF No. 14-1 at p. 9. Plaintiff
contends that the AU J should have obtained another consultative review to consider these
additional treatment records. This argument is not persuasive.
Review of the AL's decision reveals that the AU J considered in detail both the
April 1, 2021, letter and the June 15, 2021, reports which Ms. O'Neil provided. The AU J did not
find either of these reports persuasive because they were not consistent with the balance of
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Plaintiff's psychological treatment records, and there were no treatment notes from Ms. O'Neil's
appointments with Plaintiff. A review of the evidence of record confirms these findings.
Plaintiff treated with Ms. O'Neil beginning in October 2020 and continuing through
December 2021. R. 937-947. These records contain a detailed initial intake assessment for
Plaintiff, but treatment notes are not contained within Plaintiff's records from Ms. O'Neil. Thus,
Ms. O'Neil's opinions as expressed in her letter of April 1, 2021, and her assessment of June 15,
2021, are not supported by the evidence of record.
The AU J further found that the treatment notes from Plaintiff's contemporaneous treatment
with Potomac Highlands Guild did not support Ms. O'Neil's opinions, and that these records
demonstrated largely normal examination findings and a positive response to medications over
time. A review of those records supports the AL's assessment. See R. 1009-1020, 1075-1078.
Plaintiff contends that the All did not review and consider Plaintiff's records from
Potomac Highlands Guild when formulating his opinion. This is incorrect. The AU J considered
these records. See R. 31, 33 (citing to B19F and B24F, or Office treatment Records from Potomac
Highland Guild). As the AU J noted, these records are unremarkable. See R. 33 ("despite some
mood or coping ability deficits, the claimant otherwise had normal attitude, speech, though,
perception, concentration, orientation, and memory on exams with positive response to
medications over time"). A review of these records confirms the AL's opinion. See R. 10091020, 1075-1078.
Based on the above and based upon the Court's comprehensive review of the evidence of
record concerning Plaintiff's alleged psychological impairments, the Court would find that
substantial evidence supports the All's findings. The All's decision covers approximately 21
single-spaced, detailed, and well-reasoned pages. The AL's analysis concerning Plaintiff's
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psychological impairments includes approximately three pages and approximately 6 single-spaced
paragraphs in which the AU J addresses Plaintiff's psychological treatment, the two State Agency
consultants' reports, as well as Ms. O'Neil's records, her April 1, 2021, letter, her June 15, 2021,
report, and records from Tina Alt Liong, MA, LPC. The AU J also considered Plaintiff's treatment
records from Potomac Highlands Guild. Indeed, the AU J appears to have considered all relevant
evidence of record in formulating his RFC opinion and has accurately recounted the same. The
undersigned sees no reason to disturb the AL's findings on appeal.
Finally, the undersigned would conclude that the AU J did not insert himself as a medical
expert and interpret Ms. O'Neil's treatment records, as Plaintiff argues. Rather, the AUJ
considered Ms. O'Neil's opinion(s) and noted a lack of support for her opinions in the medical
records she provided. The undersigned has confirmed the AL's factual assessment. Accordingly,
Plaintiff's argument in this regard is also without merit.
2.

Undefined Phrase in RFC

Plaintiff next argues that the AU J erred when he used an undefined phrase in his RFC, i.e.,
"instructions that are not involved." Plaintiff argues that the phrase "instructions that are not
involved" frustrates meaningful review of the RFC. See Mascio v. Colvin, 780 F.3d 632, 636 (4th
Cir. 2015). The undersigned would disagree. To the contrary, the AL's decision provided a
comprehensive narrative discussion of Plaintiff's RFC, and in particular the impetus for the finding
that Plaintiff could engage in employment where instructions were not that involved. See R. 31
(noting and giving credit to Plaintiff's testimony that she had to re-read written instructions and
ask for spoken instructions to be repeated). Meaningful review of the AL's RFC is possible.
After having considered the same, the undersigned would conclude that substantial evidence
supports the AL's RFC finding.
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V.

Recommendation

Accordingly, and for all of the foregoing reasons, the undersigned would RECOMMEND
that Plaintiffs Motion [14] for Summary Judgment be DENIED and that Defendant's Motion [15]
for Summary Judgment be GRANTED.
Any party who appears pro se and any counsel of record, as applicable, may, within
fourteen (14) days after being served with a copy of this Report and Recommendation, file
with the Clerk of the Court written objections identifying the portions of the Report and
Recommendation to which objection is made, and the basis for such objection.
A copy of such objections should be submitted to the District Judge of Record.
Failure to timely file objections to the Report and Recommendation set forth above will
result in waiver of the right to appeal from a judgment of this Court based upon such Report
and Recommendation. See 28 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d 841, 845-48 (4th
Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984), cert. denied, 467 U.S.
1208 (1984); see also Thomas v. Arts, 474 U.S. 140, 155 (1985).
The Court DIRECTS the Clerk of the Court to provide a copy of this Report and
Recommendation to all counsel of record, as provided in the Administrative Procedures for
Electronic Case Filing in the United States District Court for the Northern District of West
Virginia. The Court further DIRECTS the Clerk to mail a copy of this Report and
Recommendation to any pro se party by certified mail, return receipt requested, to their last known
address as reflected on the docket sheet.
Respectfully submitted this 22"d day of

AZZONE
ATES MAGISTRATE JUDGE