Stalnaker v. Commissioner of Social Security

Filing 18

MEMORANDUM OPINION AND ORDER AFFIRMING and ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: 16 Report and Recommendation is AFFIRMED and ADOPTED in its entirety; 14 Defendant's Motion for summary judgment is GRANTED and 11 Plaintiff's Motion for Summary Judgment is DENIED. This civil case is DISMISSED and STRICKEN from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 6/7/11. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRENDA S. STALNAKER,
Plaintiff,
v.

Civil Action No. 5:10CV36
(STAMP)

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

The plaintiff, Brenda A. Stalnaker, filed an application for
Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1383f.

In the application, the

plaintiff alleges disability since December 1, 2001 due to lower
back problems, bipolar/depression, and arthritis.1

After the

Social Security Administration denied the plaintiff’s application
initially
hearing.

and

on

reconsideration,

the

plaintiff

requested

a

A hearing was held on May 5, 2009 before Administrative

Law Judge (“ALJ”) Richard D. Brady.

The plaintiff, represented by

counsel, testified on her own behalf, as did Vocational Expert
(“VE”) James Ganoe.

On June 24, 2009, the ALJ issued a decision

denying benefits and declining to reopen the prior decision.2

1

This Court notes that the current application is the
plaintiff’s third. The two prior claims were denied by an ALJ.
2

In the report and recommendation, the magistrate judge
discusses the plaintiff’s argument regarding the ALJ’s failure to

Specifically, the ALJ concluded that the plaintiff has not been
under a disability, as defined by § 1614(a)(3)(A) of the Social
Security Act, and is therefore not entitled to SSI.

The Appeals

Council denied the plaintiff’s request for review, thus making the
ALJ’s decision the final decision of the Commissioner. Thereafter,
the plaintiff filed the present civil action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of an adverse decision by the
defendant, Commissioner of Social Security.
The case was referred to United States Magistrate Judge John
S.

Kaull

for

recommendation

submission
for

of

proposed

disposition

findings

pursuant

of

to

fact

28

and

U.S.C.

§ 636(b)(1)(B). Both the plaintiff and the defendant filed motions
for summary judgment.

On April 20, 2011, the magistrate judge

issued

recommendation,

a

report

and

recommending

that

the

plaintiff’s motion for summary judgment be denied and that the
defendant’s

motion

for

summary

judgment

be

granted.

Upon

submitting his report, Magistrate Judge Kaull informed the parties
that if they objected to any portion of his proposed findings of
fact and recommendation for disposition, they must file written
objections within fourteen (14) days after being served with a copy
of the report.

The plaintiff filed timely objections.

reopen her claim based on “new and material evidence.”
The
magistrate judge notes that this claim has since been abandoned,
but goes on to address the issue, stating that this Court does not
have jurisdiction to review a final decision not to reopen a claim
for benefits. Holloway v. Schweiker, 724 F.2d 1102, 1104 (4th Cir.
1984). This Court agrees.
2

II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

As to those

portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”
Supp.

825

(E.D.

Cal.

1979).

See Webb v. Califano, 458 F.

Because

the

plaintiff

filed

objections, this Court will undertake a de novo review as to those
portions of the report and recommendation to which objections were
made.
III.

Discussion

In her motion for summary judgment, the plaintiff contends
that the final decision of the Commissioner is not supported by
substantial evidence.

Specifically, the plaintiff contends that:

(1) the ALJ’s finding that Listing 12.04(C) was not met is not
supported by substantial evidence; and (2) the ALJ gave inadequate
reasons for discrediting the diagnostic opinion of Dr. Sharon
Joseph and failed to include the diagnosis of pain disorder as a
severe impairment.
In

the

defendant’s

motion

for

summary

judgment,

the

Commissioner contends: (1) the plaintiff failed to meet her burden
of demonstrating that her condition met listing 12.04(C); (2) the
ALJ’s credibility determination should not be disturbed; and (3)

3

the ALJ’s Step Five determination is supported by substantial
evidence.
Magistrate Judge Kaull issued a report and recommendation, in
which he held that substantial evidence supports the ALJ’s finding
that the plaintiff did not meet Listing 12.04(C).

The magistrate

judge notes that there is no dispute as to the ALJ’s finding that
the

plaintiff

suffers

from

bipolar

disorder.

However,

the

magistrate judge found that none of the plaintiff’s symptoms would
prevent her, or, more importantly, any person, from being able to
perform any gainful activity. See Sullivan v. Zebley, 493 U.S. 521
(1990).

Further, the magistrate judge found that the ALJ properly

accorded Dr. Scharf’s conclusory forms little weight as not being
sufficiently

supported

by

specific

findings

and

also

being

vocational and medical issues reserved to the Commissioner. See 20
C.F.R. § 404.1527(e).
The magistrate judge next held that substantial evidence
supports the ALJ’s determination that Dr. Joseph’s opinion was not
supported by her own examination.

Specifically, Dr. Joseph’s

diagnosis of pain disorder with both physical and psychological
components
diagnosis.

is

not

supported

by

her

own

evaluation

for

that

According to the magistrate judge, nothing in the

evaluation supports Dr. Joseph’s opinion that the plaintiff equaled
the listings for a somatoform disorder or mental retardation, thus,
Dr. Joseph’s opinion cannot be afforded more weight, as the
plaintiff suggests.

Moreover, the magistrate judge notes that Dr.

4

Joseph only examined the plaintiff on one occasion for the purpose
of determining whether she should be considered disabled.

Because

Dr. Joseph is an examining psychologist as opposed to a treating
psychologist, her opinion is entitled to lesser weight.

See

Rebrook v. Astrue, No. 1:09CV50, 2010 WL 2233672, at *32 (N.D. W.
Va. May 14, 2010).
Finally,

the

inconsistencies

in

magistrate
Dr.

judge

Joseph’s

notes

report

that

that

there

are

undercut

the

credibility of the information provided to her by the plaintiff.
Dr. Joseph’s report is also inconsistent with the consultative
evaluation performed on March 19, 2008 by Dr. Klein.

For these

reasons, the magistrate judge found that substantial evidence
supports

the

ALJ’s

rejection

of

Dr.

Joseph’s

medical

source

statement (“MSS”) and opinion regarding the plaintiff’s workrelated functional limitations, her diagnosis of pain disorder, and
her opinion that the plaintiff met Listing 12.04(C).
Thereafter, the plaintiff filed objections to the magistrate
judge’s report and recommendation.

In these objections, the

plaintiff argues that the magistrate judge failed to address her
contention that the ALJ’s analysis of Listing 12.04(C) ignored
important evidence.

Specifically, the plaintiff argues that the

ALJ ignored the findings of the treating mental health center, the
somnolent effect of prescribed medications on the plaintiff’s
functioning, the lay witness statements regarding functioning, and
the

opinion

of

Dr.

Joseph

regarding

5

Listing

12.04(C).

The

plaintiff also contends that the magistrate judge misunderstood the
requirements

of

Listing

12.04(C)

with

regard

to

episodes

of

decompensation.
The plaintiff next objects to the finding that substantial
evidence supported the omission of “severe impairments” and the
rejection of the diagnostic opinions of Dr. Joseph.

Moreover, the

plaintiff objects to the magistrate judge’s determination that Dr.
Joseph’s opinion was not supported by her own examination.
plaintiff

also

argues

that

the

magistrate

judge

The

improperly

conducted a post hoc credibility analysis to support his finding
regarding the ALJ’s rejection of Dr. Joseph’s report. Finally, the
plaintiff objects to the recommendation of the magistrate judge
that substantial evidence supported the Commissioner’s decision.
An ALJ’s findings will be upheld if supported by substantial
evidence.

See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528

(4th Cir. 1998). Substantial evidence is that which a “‘reasonable
mind might accept as adequate to support a conclusion.’”

Hays v.

Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)).

Further, the “‘possibility

of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by
substantial evidence.’”

Sec’y of Labor v. Mutual Mining, Inc., 80

F.3d 110, 113 (4th Cir. 1996) (quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966)).

6

In

her

objections,

the

plaintiff

first

argues

that

the

magistrate judge did not address her primary argument: that the
ALJ’s analysis of Listing 12.04(C) failed to address evidence that
supported her position that Listing 12.04(C) was met. According to
the plaintiff, the ALJ did not conduct the requisite comparison of
the listed criteria to evidence of the plaintiff’s symptoms.
plaintiff

also

alleges

that

the

magistrate

judge

The

improperly

attempted to perform the analysis that the ALJ himself did not do.
This Court does not agree with the plaintiff that the ALJ
failed to analyze evidence.

It is true that an ALJ must identify

the relevant listings and then compare each of the listed criteria
to the plaintiff’s symptoms.
(4th Cir. 1983).

Cook v. Heckler, 783 F.2d 1168, 1173

The ALJ fulfills this duty when he provides

findings and determinations sufficiently articulated to permit
meaningful judiciary review.
150 (4th Cir. 1983).

DeLoatche v. Heckler, 715 F.2d 148,

In this case, the ALJ concluded that Dr.

Joseph’s findings regarding the potential for the plaintiff to
decompensate are not supported by the treatment records.

After

reviewing the ALJ’s opinion, it is clear that the ALJ did consider
the mental health treatment records from the United Summit Center,
in which the plaintiff “was rated as having no more than mild
restrictions in activities of daily living, social functioning and
concentration.”

(ALJ Decision ¶ 3.)

The ALJ’s decision also

discusses the plaintiff’s psychiatric medications, which Dr. Orvik
stated help her significantly. While the plaintiff claims that the

7

ALJ gave no weight to the psychological report and opinion of Dr.
Joseph, the ALJ’s opinion clearly states otherwise.

The ALJ notes

that Dr. Joseph’s finding that the plaintiff met the criteria of
Listing 12.04(C) lacks support in the treatment records from the
United Summit Center.

Further, Dr. Joseph’s MSS was inconsistent

with other treatment records and evaluations.

For example, the IQ

testing conducted by Dr. Joseph indicated that the plaintiff falls
at

the

upper

functioning.

end

of

the

Borderline

Range

of

intellectual

Despite this score, Dr. Joseph stated that the

plaintiff’s intellectual functioning equaled the listing for mental
retardation.

Dr. Joseph’s opinion may have been given little

weight, but it was considered by the ALJ.
The United States Court of Appeals for the Fourth Circuit has
established a five part analysis for evaluating and weighing
medical opinions: “(1) whether the physician has examined the
applicant, (2) the treatment relationship between the physician and
the applicant, (3) the supportability of the physician’s opinion;
(4) the consistency of the opinion with the record, and (5) whether
the physician is a specialist.”

Hines v. Barnhart, 453 F.3d 559,

563 (4th Cir. 2006); 20 C.F.R. § 404.1527(d).
Here, the ALJ followed the correct procedure in making the
determination to afford little weight to Dr. Joseph’s opinion.
First, it is undisputed that the ALJ acknowledged that Joseph
examined the plaintiff.

Second, the ALJ did note the treatment

relationship -- Dr. Joseph saw the plaintiff for a one-time

8

psychological

consultative

evaluation

on

September

30,

2008.

Third, the ALJ stated that Dr. Joseph’s opinion was not supported
by objective evidence.

The ALJ found that Dr. Joseph’s assessment

lacks support in the treatment records from the United Summit
Center showing no episodes of decompensation.

Fourth, the ALJ

stated that Dr. Joseph’s opinion was not consistent with other
treatment records and evaluations.

The preponderance of the

evidence does not support Dr. Joseph’s opinion that the plaintiff
has marked limitations.

In fact, Dr. Joseph’s assessment that the

plaintiff had no more than moderate functional limitations directly
contradicts her own finding that the plaintiff met Listing 12.04(C)
criteria.

Conversely, the ALJ gave significant weight to the

mental residual functional capacity by the reviewing psychologist
who

completed

the

earlier

psychiatric

review

technique

form

(“PRTF”), opining that the plaintiff retains the ability to perform
work. Fifth, the ALJ does not dispute that Joseph is a specialist.
In examining the record in its entirety, it is clear that the
ALJ considered the opinions of multiple physicians in addition to
Dr. Joseph’s opinion, who, notably, only examined the plaintiff on
one occasion at the suggestion of her counsel.

The ALJ, in

weighing the evidence, could find that the state psychologists’
assessments of the plaintiff were more credible than Dr. Joseph’s
opinion.

It is for the ALJ, not this Court, to weigh the evidence

of record.

Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).

This Court finds that the ALJ performed the analysis required by

9

Hines before rendering his decision and relied upon the correct
factors in making his decision, which is supported by substantial
evidence.
The

plaintiff

also

contends

that

the

magistrate

judge

misunderstood the requirements of Listing 12.04(C) with regard to
episodes of decompensation.

According to the plaintiff, the

magistrate judge incorrectly analyzed the evidence as if the
listing required that disabling episodes of decompensation must
have occurred.
judge’s finding.

But the plaintiff misconstrues the magistrate
The magistrate judge acknowledges Dr. Joseph’s

prediction that changes in her environment or mental demands might
cause her to decompensate.

The magistrate judge then goes on to

say that this prediction lacks support in the treatment records.
Despite having already experienced increases in her mental demands
and changes in her environment, the plaintiff only ever reported
moderate symptoms such as anxiety and depression.

The magistrate

judge cites these various instances as proof that the plaintiff
cannot be predicted to decompensate.

This Court agrees with the

magistrate judge that the ALJ properly explained the reasoning
behind why the plaintiff failed to meet Listing 12.04(C).
The plaintiff next contends that the magistrate judge erred in
finding that substantial evidence supports the rejection of the
diagnostic opinions of Dr. Joseph, specifically, the diagnosis of
pain disorder as a severe impairment.

Again, the plaintiff argues

that the magistrate judge included his own post hoc credibility

10

analysis to support his finding regarding the ALJ’s rejection of
Dr. Joseph’s report. As described above, this Court finds that Dr.
Joseph’s opinion was properly given little weight by the ALJ.

The

magistrate judge correctly states that because Dr. Joseph is an
examining psychologist who saw the plaintiff on only one occasion
to help determine whether she should be considered disabled for
Social Security purposes, she is entitled to lesser weight than a
treating physician.

Thus, the ALJ was required to evaluate the

supportability of Dr. Joseph’s opinion and its consistency with the
record as a whole in determining the weight to accord it.

The

plaintiff may not agree with the relative little weight afforded to
Dr. Joseph’s opinion, but the fact remains that the ALJ only
discounted Dr. Joseph’s opinion after reviewing the entire record
and determining that it was inconsistent with other treatment
records, evaluations, and with Dr. Joseph’s own test results.

In

fact, as the magistrate judge states, Dr. Joseph’s opinion is
inconsistent with virtually all of the other medical evidence in
the record.

No other healthcare provider diagnosed borderline

intellectual functioning or a pain disorder.
“[t]he

evidence

clearly

presents

no

As the ALJ stated,

physical

basis

for

the

[plaintiff’s] symptoms, and counsel offers argument that only Dr.
Joseph has been able to solve the puzzle by establishing that a
mental

disability

exists

which

[plaintiff’s] symptoms as well.”

provides

the

basis

(ALJ Decision ¶ 4.)

for

the

The fact

that Dr. Joseph conducted objective/standardized testing does not

11

mean that her opinion should be weighed more heavily. Finally, the
inconsistencies in Dr. Joseph’s report cannot be explained away by
the passage of time, as the plaintiff suggests.
The plaintiff’s final objection is that the magistrate judge
erred

in

finding

that

substantial

evidence

supported

the

Commissioner’s decision. For all of the reasons stated above, this
Court finds that the ALJ’s opinion was supported by substantial
evidence.

It is the duty of the ALJ, not this Court to weigh the

evidence in the record.

See Smith, 99 F.3d at 638 (“The duty to

resolve conflicts in the evidence rests with the ALJ, not with a
reviewing court.”).
This Court has reviewed the record, the parties’ motions for
summary judgment, and the plaintiff’s objections, and after a de
novo

review,

concurs

with

the

magistrate

judge

that

the

Commissioner’s decision that the plaintiff was not disabled is
supported by substantial evidence.

Accordingly, the magistrate

judge’s report and recommendation is affirmed and adopted in its
entirety.
V.

Conclusion

Based upon a de novo review, this Court hereby AFFIRMS and
ADOPTS the magistrate judge’s report and recommendation in its
entirety.

Thus, for the reasons stated above, the defendant’s

motion for summary judgment is GRANTED and the plaintiff’s motion
for summary judgment is DENIED.

It is further ORDERED that this

12

case be DISMISSED and STRICKEN from the active docket of this
Court.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is directed to enter judgment on this
matter.
DATED:

June 7, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

13