Contin v. Astrue
Filing
11
MEMORANDUM OPINION finding that the Commissioner's decision is supported by substantial evidence. By Judgment Order entered this day, the final decision of the Commissioner is affirmed and this matter is dismissed from the docket of this court. Signed by Magistrate Judge Mary E. Stanley on 7/14/2011. (cc: attys) (lca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
PABLO ANTONIO PENA CONTIN,
Plaintiff,
v.
CASE NO. 2:10-cv-000491
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
M E M O R A N D U M
O P I N I O N
This is an action seeking review of the decision of the
Commissioner of Social Security denying Claimant’s application for
Supplemental Security Income (“SSI”), under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1383f. Both parties have consented
in writing to a decision by the United States Magistrate Judge.
Plaintiff, Pablo Antonio Pena Contin (hereinafter referred to
as “Claimant”), protectively filed an application for SSI on
December 18, 2007, alleging disability as of January 17, 2006, due
to a nervous breakdown and bipolar disorder.
114,
142.)
reconsideration.
The
claim
was
denied
(Tr. at 45-49, 51-53.)
(Tr. at 9, 85-91,
initially
and
upon
On September 16, 2008,
Claimant requested a hearing before an Administrative Law Judge
(“ALJ”).
(Tr. at 54.)
The hearing was held on April 2, 2009,
before the Honorable Theodore Burock. (Tr. at 17-36.) By decision
dated July 21, 2009, the ALJ determined that Claimant was not
entitled to benefits.
(Tr. at 9-16.)
The ALJ’s decision became
the final decision of the Commissioner on February 18, 2010, when
the Appeals Council denied Claimant’s request for review.
1-2.)
(Tr. at
On April 16, 2010, Claimant brought the present action
seeking judicial review of the administrative decision pursuant to
42 U.S.C. § 405(g).
Under
42
U.S.C.
§
423(d)(5)
and
§
1382c(a)(3)(H)(i),
a
claimant for disability benefits has the burden of proving a
disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir.
1972).
A disability is defined as the inability “to engage in any
substantial
gainful
activity
by
reason
of
any
medically
determinable physical or mental impairment which . . . can be
expected to last for a continuous period of not less than 12 months
. . . .”
The
42 U.S.C. § 1382c(a)(3)(A).
Social
Security
Regulations
establish
a
“sequential
evaluation” for the adjudication of disability claims.
§ 416.920 (2009).
20 C.F.R.
If an individual is found “not disabled” at any
step, further inquiry is unnecessary. Id. § 416.920(a). The first
inquiry under the sequence is whether a claimant is currently
engaged in substantial gainful employment.
Id. § 416.920(b).
If
the claimant is not, the second inquiry is whether claimant suffers
from
a
severe
impairment.
Id.
§
416.920(c).
If
a
severe
impairment is present, the third inquiry is whether such impairment
meets or equals any of the impairments listed in Appendix 1 to
2
Subpart P of the Administrative Regulations No. 4.
Id. §
416.920(d). If it does, the claimant is found disabled and awarded
benefits.
Id.
If it does not, the fourth inquiry is whether the
claimant’s impairments prevent the performance of past relevant
work.
Id. § 416.920(e).
By satisfying inquiry four, the claimant
establishes a prima facie case of disability.
F.2d 260, 264 (4th Cir. 1981).
Hall v. Harris, 658
The burden then shifts to the
Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983), and leads to the fifth and final inquiry: whether the
claimant is able to perform other forms of substantial gainful
activity, considering claimant’s remaining physical and mental
capacities and claimant’s age, education and prior work experience.
20 C.F.R. § 416.920(f) (2009).
things:
(1)
that
the
The Commissioner must show two
claimant,
considering
claimant’s
age,
education, work experience, skills and physical shortcomings, has
the capacity to perform an alternative job, and (2) that this
specific
job
exists
in
the
national
economy.
McLamore
v.
Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
In this particular case, the ALJ determined that Claimant
satisfied
the
first
inquiry
because
he
has
not
engaged
in
substantial gainful activity since the alleged onset date. (Tr. at
11.)
Under the second inquiry, the ALJ found that Claimant has
medically determinable impairments that are not severe.
11.)
On this basis, benefits were denied.
3
(Tr. at 16.)
(Tr. at
Scope of Review
The sole issue before this court is whether the final decision
of the Commissioner denying the claim is supported by substantial
evidence.
In Blalock v. Richardson, substantial evidence was
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. If there is evidence to
justify a refusal to direct a verdict were the
case before a jury, then there is 'substantial
evidence.’”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting
Laws
v.
Cellebreze,
368
F.2d
640,
642
(4th
Cir.
1966)).
Additionally, the Commissioner, not the court, is charged with
resolving conflicts in the evidence.
1453, 1456 (4th Cir. 1990).
Hays v.Sullivan, 907 F.2d
Nevertheless, the courts “must not
abdicate their traditional functions; they cannot escape their duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.”
Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974).
A careful review of the record reveals the decision of the
Commissioner is supported by substantial evidence.
Claimant’s Background
Claimant
was
sixty-six
years
old
at
the
time
of
the
administrative hearing. (Tr. at 23.) Claimant graduated from high
school and attended one year of college.
4
(Tr. at 23, 26.)
In the
past, he worked as a costume designer.
(Tr. at 23.)
The Medical Record
The court has reviewed all evidence of record, including the
medical evidence of record, and will summarize it briefly below.
Claimant was hospitalized at Cabell Huntington Hospital from
January 19, 2006, through January 20, 2006, after he had a seizure.
Claimant had become increasingly combative and psychotic over the
past three days before his hospitalization.
He was diagnosed with
seizures and delirium of uncertain etiology, rule out mood change
secondary to possible mood disorder.
(Tr. at 219, 221, 223.)
Claimant was hospitalized involuntarily at St. Mary’s Medical
Center from January 26, 2006, through February 4, 2006.
Claimant
was committed by his employer after progressively delusional and
bizarre behavior, speech and ideation in the preceding eleven days.
Claimant had a tonic-clonic seizure associated with cyanosis and
other
valid
findings.
Neurological
examination
was
normal,
including an EEG and non-contrast CT of the head.
(Tr. at 228.)
Claimant
His
was
prescribed
Depakote
and
Geodon.
discharge
diagnoses included psychotic disorder NOS, cognitive disorder, NOS,
grand
mal
seizure
disorder
x2,
hypertriglyceridemia and anemia, mild.
recurrent
headache,
(Tr. at 229-30.)
On February 6, 2006, Claimant reported to Plateau Medical
Center in an agitated state, complaining that he may have had a
heart attack.
(Tr. at 286.)
Claimant was diagnosed with acute
5
psychosis.
(Tr. at 287.)
On May 8, 2006, a State agency medical source, Timothy Saar,
Ph.D., completed a Psychiatric Review Technique form and opined
that Claimant’s impairments were severe, but not expected to last
twelve months.
Dr. Saar found that Claimant had a mild degree of
limitation in the three areas of functioning and that he had three
episodes of decompensation, each of extended duration.
(Tr. at
290-303.)
On March 15, 2008, a State agency medical source, Debra Lilly,
Ph.D., completed a Psychiatric Review Technique form and opined
that Claimant’s mental impairments were not severe. She found mild
limitations in the three areas of functioning and no episodes of
decompensation of extended duration.
(Tr. at 304-17.)
On March 30, 2008, Serafino S. Maducdoc, Jr., M.D. conducted
a consultative physical examination at the request of the State
disability determination service.
nervousness.
disorder.
Claimant’s chief complaint was
Claimant reported he had been diagnosed with bipolar
Dr. Maducdoc’s impressions included bipolar disorder,
chronic depression and possible senile dementia, early stages.
(Tr. at 318-20.)
On April 10, 2008, a State agency medical source, Umma Reddy,
M.D., completed a Physical Residual Functional Capacity Assessment
and opined that Claimant had no severe physical impairments.
at 328-35.)
6
(Tr.
A subsequent undated and unsigned Physical Residual Functional
Capacity Assessment again finds no severe physical impairments.
(Tr. at 337-44.)
The record includes treatment notes from the Petersen Clinic,
PLLC from Millie Petersen, D.O. and Bruce Petersen, D.O. dated June
28, 2006, through July 14, 2008.
Claimant was primarily treated
for bipolar disorder and other acute, short term conditions.
(Tr.
at 345-77.)
The
record
includes
a
later
added
intake/reassessment
evaluation from FMRS Health Systems, Inc. dated March 30, 2006.
The report states that Claimant “was discharged from BARH about
four weeks ago following a manic episode.
He has had multiple
hospitalizations starting in January of this year. He was admitted
about 7 times in three months including at [Cabell] Huntington,
Prestera, Saint Mary’s, PMC and twice at BARH.
He has been
diagnosed with bipolar disorder.” (Tr. at 382.) Claimant reported
he was doing well on medication.
(Tr. at 382.)
On examination,
Claimant’s mood was good and his affect was reactive with a full
range.
He had a clear sensorium and his thought processes seemed
linear and goal directed.
He denied psychotic symptoms.
seemed to be fair and judgment appeared to be intact.
functioning was average.
Insight
Cognitive
Aditya Sharma, M.D. diagnosed bipolar I
disorder, most recent episode manic with psychotic symptoms, in
7
partial remission on Axis I and rated Claimant’s GAF at 55 to 60.1
On October 16, 2006, Dr. Sharma noted that Claimant was doing
well, but struggled with insight issues.
Claimant felt he should
not be taking any medications, but that he had been compliant
because he wanted to avoid another manic episode.
Risperdal was cut down to 2 mg. at bedtime only.
Claimant’s
He was continued
on his present doses of Depakote ER and Trazodone.
(Tr. at 384.)
On November 7, 2007, Emily Walden, PA-C of FMRS Health
Systems, Inc. conducted a psychiatric evaluation. Ms. Walden noted
that Claimant was “admitted to BARH under involuntary commitment on
October 01, 2007. He had been having disorganized thoughts, he was
psychotic, he was manic, speech was very rapid, he was delusional
and grandiose.
hospital ....”
better.
Patient was stabilized on medications in the
(Tr. at 385.)
Claimant reported he was doing much
He complained his medications made him “really slow.”
(Tr. at 385.)
Claimant’s diagnosis was bipolar disorder, most
recent episode manic with psychotic features on Axis I. Ms. Walden
rated Claimant’s GAF at 30.2
1
A GAF rating between 51 and 60 indicates "[m]oderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational, or school functioning (e.g., few friends,
conflict with peers or co-workers). American Psychiatric Assoc., Diagnostic
and Statistical Manual of Mental Disorders 34 (4th ed. (Text Revision) 2000).
2
A GAF rating between 21 and 30 indicates "[b]ehavior is considerably
influenced by delusions or hallucinations OR serious impairment in
communication or judgment (e.g., sometimes incoherent, acts grossly
inappropriately, suicidal preoccupation) OR inability to function in almost
all areas (e.g., stays in bed all day; no job, home, or friends).” American
Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 34
(4th ed. (Text Revision) 2000).
8
On December 12, 2007, Dr. Sharma noted that Claimant was doing
well as far as his mood was concerned.
Claimant reported trouble
with sleeping and medication side effects of sleeping during the
day because of Ativan.
Dr. Sharma diagnosed bipolar disorder,
seizure disorder and glaucoma. Dr. Sharma discontinued the Ativan.
(Tr. at 387.)
On January 9, 2008, Dr. Sharma noted that Claimant
was doing well, but continued having trouble with sleep at night.
Dr. Sharma’s diagnoses remained the same.
Claimant’s Trazodone.
(Tr. at 388.)
Dr. Sharma increased
On February 28, 2008, Dr.
Sharma noted that Claimant continued to do well on his medications.
His mood was stable and he was sleeping much better.
no psychotic symptoms, and his mood was good.
euthymic with a full range.
(Tr. at 389.)
Claimant had
His affect seemed
On March 27, 2008, Dr.
Sharma noted that Claimant was doing well and that his mood
continued to remain stable.
(Tr. at 390.)
On May 22, 2008, Dr.
Sharma noted that Claimant continued to do well, but was having
problems with arthritis and was on Diclofenac.
he was applying for disability.
(Tr. at 391.)
Claimant reported
On August 14, 2008,
Claimant was off his medication due to a Medicaid mix up and he
began to “feel different.”
(Tr. at 392.)
However, he had resumed
the medication and was doing well, but was not sleeping.
Dr.
Sharma prescribed Ambien in addition to his other medications.
(Tr. at 392.)
On August 29, 2008, a State agency medical source, James
9
Binder, M.D., completed a Psychiatric Review Technique form and
opined that Claimant had severe mental impairments that resulted in
mild
restriction
maintaining
of
daily
social
activities,
functioning,
mild
moderate
difficulties
difficulties
in
in
maintaining concentration, persistence and pace and no episodes of
decompensation of extended duration.
Dr.
Capacity
Binder
also
Assessment
completed
on
which
he
a
(Tr. at 394-404.)
Mental
opined
Residual
that
Functional
Claimant
had
a
moderately limited ability to understand, remember and carry out
detailed instructions, maintain attention and concentration for
extended periods, and complete a normal work day and workweek
without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and
length of rest periods.
(Tr. at 408-09.)
On November 6, 2008, Dr. Sharma noted that Claimant continued
to do well on Depakote, Risperdal Consta and Ambien.
Claimant
reported the medication prescribed for his arthritis was helping
his condition.
Claimant was appropriately interactive, his mood
seemed euthymic with full range of affect, and he had no psychotic
symptoms.
(Tr. at 418.)
The record includes additional treatment notes from Drs.
Millie and Bruce Peterson dated July 14, 2008, through January 6,
2009.
(Tr. at 421-34.)
On March 9, 2008, Claimant presented to Appalachian Regional
10
Healthcare, Inc. with complaints of shortness of breath and cough
for several days. He was diagnosed with acute bronchitis. (Tr. at
436-37.)
The
transcript
includes
records
from
Claimant’s
hospitalization at Beckley-Appalachian Regional Healthcare, Inc.
(“BARH”) from October 1, 2007, through October 23, 2007.
Claimant
was admitted in an agitated and psychotic state and had not been
taking his medications.
On medication, his mood stabilized.
His
discharge diagnosis was bipolar disorder, most recent episode manic
with psychotic symptoms. His GAF was rated at 45-50 on discharge.3
Analysis
After a careful consideration of the evidence of record, the
court finds that the Commissioner’s decision is supported by
substantial evidence.
In his decision, the ALJ determined that
Claimant had medically determinable impairments of arthritis, grand
mal seizure disorder, acute prostatitis with hematuria, acute
bronchitis, recurrent headaches, hypertriglyceridemia, mild anemia,
bipolar disorder, cognitive disorder NOS, and psychotic disorder
NOS, but that these impairments, alone and in combination, were not
severe.
(Tr. at 11.)
Claimant’s primary impairment is bipolar disorder, and despite
3
A GAF of 41-50 is defined as “[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job).” American Psychiatric Assoc., Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed. (Text Revision) 1994).
11
hospitalizations in 2006 and 2007,4 the medical evidence of record
indicates that when medicated, Claimant’s impairment did not
significantly limit his ability to perform basic work related
activities. As such, the ALJ’s determination that Claimant did not
suffer severe mental or physical impairments is supported by
substantial evidence.
In making this finding, the court finds that the ALJ properly
weighed the medical evidence of record related to Claimant’s
impairments in keeping with the applicable regulation at 20 C.F.R.
§ 416.927(d) (2009).
Regarding his mental impairments in particular, the ALJ relied
on the opinions of the nonexamining State agency sources who opined
that Claimant’s mental impairments were not severe.
He explained
his reasons for rejecting the opinion of Dr. Binder, the one State
agency
source
who
opined
that
Claimant
had
severe
mental
impairments, noting that his findings were inconsistent with other
evidence of record and his own findings.
Indeed, the evidence of
record indicates that when medicated, Claimant’s symptoms related
to bipolar disorder are manageable.
4
Claimant testified as much
Despite two hospitalizations in 2006 and one in 2007, as noted
above, these did not qualify as repeated episodes of decompensation, each of
extended duration, as that term is defined in evaluating mental impairments.
To meet this requirement, a claimant must have “three episodes within 1 year,
or an average of once every 4 months, each lasting for at least 2 weeks. If
you have experienced more frequent episodes of shorter duration or less
frequent episodes of longer duration, we must use judgment to determine if the
duration and functional effects of the episodes are of equal severity and may
be used to substitute for the listed finding in a determination of
equivalence.” 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00(C)(4) (2009).
12
when he stated at the administrative hearing that he had “been
doing fine because I take my medication.”
(Tr. at 30.)
This fact
is reflected also in the treatment notes from Dr. Sharma and
others,
which
consistently
indicate
that
when
Claimant
was
compliant with his medication, his mental condition was stable.
Furthermore, even when the ALJ limited Claimant to jobs
involving routine, repetitive tasks involving only incidental
public contact in a hypothetical question to the vocational expert,
the vocational expert identified a significant number of jobs that
Claimant could perform.
(Tr. at 33-34.)
Accordingly, by Judgment Order entered this day, the final
decision of the Commissioner is AFFIRMED and this matter is
DISMISSED from the docket of this court.
The Clerk of this court is directed to transmit copies of this
Order to all counsel of record.
ENTER: July 14, 2011
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