Settle v. Astrue
Filing
14
MEMORANDUM OPINION finding the ALJ properly evaluated the claim and weighed the medical evidence and provided Claimant with a fair hearing. 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 7/11/2011. (cc: attys) (lca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
PATRICK WAYNE SETTLE,
Plaintiff,
v.
CASE NO. 2:10-cv-00559
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.
This case is presently
pending before the court on cross-briefs for judgment on the
pleadings. Both parties have consented in writing to a decision by
the United States Magistrate Judge.
Plaintiff, Patrick Wayne Settle (hereinafter referred to as
“Claimant”), filed an application for SSI on June 15, 2007,
alleging disability as of April 1, 2003, due to illiteracy,
scoliosis, back/neck/right shoulder/leg pain, migraines, multiple
sclerosis of the brain, bi-polar, short term memory loss, muscle
spasms, vision problems, hearing loss in left ear, and stomach
pain/acid reflux.1
(Tr. at 16, 138-43, 165-73, 196-202; 215-21.)
The claim was denied initially and upon reconsideration.
16, 94-98; 101-03.)
On August 20, 2008, Claimant requested a
hearing before an Administrative Law Judge (“ALJ”).
10.)
(Tr. at
(Tr. at 107-
The hearing was held on September 25, 2008 before the
Honorable Valerie A. Bawolek.
(Tr. at 33-71, 114.)
By decision
dated December 1, 2008, the ALJ determined that Claimant was not
entitled to benefits.
(Tr. at 16-32.)
The ALJ’s decision became
the final decision of the Commissioner on March 22, 2010, when the
Appeals Council denied Claimant’s request for review.
(Tr. at 1-
4.) On April 22, 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
1
reason
of
any
medically
On November 9, 2000, Claimant filed an application for SSI,
alleging disability beginning September 1, 1987. The claim was denied
on March 12, 2001, and Claimant did not appeal the determination. On
August 12, 2003, Claimant filed an application for SSI, alleging
disability beginning April 1, 2003. The claim was denied initially on
March 29, 2004, and on reconsideration on May 14, 2004. Claimant
requested a hearing, which was held on March 7, 2006. The ALJ issued
an unfavorable decision on May 26, 2006. Claimant requested Appeals
Council review but was denied on July 26, 2006. Claimant did not
pursue further appeal of this claim. On June 15, 2007, Claimant
protectively filed his current application for SSI.
2
determinable physical or mental impairment which . . . can be
expected to last for a continuous period of not less than 12 months
. . . .”
42 U.S.C. § 1382c(a)(3)(A).
The
Social
Security
Regulations
establish
a
“sequential
evaluation” for the adjudication of disability claims.
§ 416.920 (2010).
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
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
3
capacities and claimant’s age, education and prior work experience.
20 C.F.R. § 416.920(f) (2010).
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
18.) Under the second inquiry, the ALJ found that Claimant suffers
from
the
severe
impairments
intellectual functioning.
of
back
(Tr. at 18-22.)
strain
and
borderline
At the third inquiry,
the ALJ concluded that Claimant’s impairments do not meet or equal
the level of severity of any listing in Appendix 1.
24.)
(Tr. at 22-
The ALJ then found that Claimant has a residual functional
capacity for medium work, reduced by nonexertional limitations.
(Tr. at 24-31.)
Claimant has no past relevant work.
(Tr. at 31.)
Nevertheless, the ALJ concluded that Claimant could perform jobs
such as hand packer, sweeper/cleaner, and motel cleaner which exist
in significant numbers in the national economy.
On this basis, benefits were denied.
(Tr. at 31-32.)
(Tr. at 32.)
Scope of Review
The sole issue before this court is whether the final decision
4
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
twenty-six
administrative hearing.
education,
which
years
old
(Tr. at 37.)
included
education in auto mechanics.
one
year
at
the
time
of
the
He has a tenth grade
of
vocational/technical
(Tr. at 39, 271.)
In the past, he
has worked at a “few odd jobs” but has never tried to get regular
5
employment.
(Tr. at 40.)
The Medical Record
The court has reviewed all evidence of record, including the
medical evidence of record, and will summarize it below.
Physical Evidence
On February 27, 2004, Claimant had a lumbar spine x-ray at
Montgomery General Hospital.
(Tr. at 262.)
Kenneth Dwyer, M.D.,
radiologist, stated: “AP and lateral views of the lumbar spine
demonstrate
normal
alignment.
The
lumbar
maintained.
There is no evidence for fracture.
intact. IMPRESSION: NORMAL LUMBAR SPINE.”
disc
spaces
are
The SI joints are
Id.
On March 7, 2004, Nilima Bhirud, M.D., provided a Disability
Determination Evaluation of Claimant.
(Tr. at 258-61, 263-64.)
Dr. Bhirud stated that Claimant “gives a history of backache, neck
pain, left shoulder pain, left ankle pain, and bipolar disorder.”
(Tr. at 259.)
Dr. Bhirud reached these conclusions:
PHYSICAL EXAMINATION:
GENERAL: The claimant could pick up a coin from the
floor. The claimant could stand on each foot at a time.
The claimant could do heel-walking, toe-walking and
squatting. The claimant’s gait was normal. He could
walk in tandem gait. He was not using any ambulatory
aids.
He was comfortable in sitting and standing
position...
EYES: The pupils are equal, round and reactive to light
and accommodation...
EARS:
Normal...
CENTRAL NERVOUS SYSTEM: Oriented times three. Central
nerves normal. No sensory or motor deficit. Reflexes
6
2+, symmetrical...
MUSCULOSKELETAL SYSTEM: Cervical spine reveals no
tenderness and range of motion is normal. Thoracic spine
reveals scoliosis of thoracic spine with convexity to the
right. Lumbar spine reveals no tenderness and range of
motion normal. Straight leg raising is negative on both
sides...
VISUAL ACUITY:
20/50...
Without
glasses,
right
20/40,
left
ASSESSMENT: The claimant is 21-year old male who gives
history of neck pain and backache. At the time of the
examination, there was no tenderness over the C-spine or
lumbar spine. He has a history of scoliosis of thoracic
spine. He has tenderness over the left shoulder but the
range of motion was normal.
The left ankle, he had
tenderness but the range of motion was normal. He also
gives a history of bipolar disorder and split
personality. He needs to see a psychiatrist for that.
(Tr. at 259-60.)
Records indicate Claimant was treated by Karen Hultman, D. O.
on seven occasions: November 9, 2004, November 23, 2003, January
27, 2005, March 3, 2005, May 10, 2005, June 23, 2005 and July 20,
2005.
(Tr. at 230-35, 248-57.)
On November 9, 2004, Dr. Hultman reported:
Dx with scoliosis a
River Health Center;
car accident in 1998
neck pain; this also
few years ago by a doctor at New
has back pain all the time; was in
that gives him right shoulder and
contributes to the back pain...
Physical Examination: Alert and oriented in no acute
distress.
Vital signs are stable.
Afebrile [normal
temperature]. Right leg is about ½ inch shorter than
left; minimal muscle spasm is noted in the thoracic
paravertebral muscles. There is a full Range of Motion
to the thoracic spine. Sensation of the upper and lower
extremities is intact. Muscle strength is 2/4 and equal
bilaterally. DTR [deep tendon reflex] are 2/4 and equal
bilaterally.
There is tenderness to palpitation
7
throughout the thoracic spine bilaterally. There is no
point tenderness. No deformity is noted. ++ scoliosis is
noted. The lumbar spine shows a full range of motion.
There is no deformity and no point tenderness. DTR are
2/4 and equal bilaterally.
Sensation is equal and
adequate bilaterally.
Muscle strength is equal.
Dorsiflexion of the great toe is equal and adequate.
Dorsiflexion of the foot is equal. There is a negative
straight leg raising test bilaterally both sitting and
lying.
There is generalized muscle spasm noted
throughout the lumbar spine paravertebral muscles.
Assessment: scoliosis, arthritis, short leg.
Plan: Shoe lift start with 1/4 lift; daypro; recheck in
two weeks; RTC [return to clinic] if no improvement or
any problems.
(Tr. at 256-57.)
On November 23, 2004, Dr. Hultman reported:
Physical Examination: Alert and oriented in no acute
distress...Minimal muscle spasm is noted in the thoracic
paravertebral muscles. There is full Range of Motion to
the thoracic spine...The lumbar spine shows a full Range
of Motion.
There is no deformity and no point
tenderness...There is a negative straight leg raising
test bilaterally both sitting and lying.
There is
generalized muscle spasm noted throughout the lumbar
spine paravertebral muscles.
Assessment: gerd [gastroesophageal reflux disease],
Scoliosis, thoracic strain, lumbar strain, short leg.
Plan: Zantac, lortab, TRC if no improvement or any
problems.
(Tr. at 254-55.)
On January 27, 2005, Dr. Hultman stated that Claimant was
complaining of right shoulder and right wrist pain from a “previous
injury” and that she was ordering x-rays.
(Tr. at 252.)
On February 7, 2005, Dr. Hultman stated that a radiology
8
report of claimant’s right shoulder and right wrist were normal.
(Tr. at 250.)
On March 3, 2005, Dr. Hultman reported:
Physical Examination: X-ray reviewed: Normal.
Does not appear hyper. Appears very calm is slumped in
the chair relaxed. Does not appear to be in any pain
today. Alert and oriented in no acute distress...
The lumbar spine shows a full range of motion. There is
no deformity and no point tenderness...There is negative
straight leg raising test bilaterally both sitting and
lying.
There is minimal if any muscle spasm noted
throughout the lumbar spine paravertebral muscles...No
scoliosis is noted.
Assessment:
Patient thinks he has ADHD [attention
deficit hyperactivity disorder]; I see no evidence today.
Back pain, low grade sprain, prob [probably] due to lack
of exercise and poor posture.
Plan: refer to psyc [psychiatrist] for possible ADHD;
physical therapy; iodine bid; back care book and
exercises; RTC if no improvement or any problems.
(Tr. at 248-49.)
On May 10, 2005, Dr. Hultman reported:
Patient reports that he has low back pain – pain scale 89 - things that help pain was Lortab...headaches every
day but says just started 304 days ago...
Physical Examination: Alert and oriented in no acute
distress...The lumbar spine shows a full range of motion.
There is no deformity and no point tenderness. DTR are
+2/4 and equal bilaterally.
Sensation is equal and
adequate bilaterally.
Muscle strength is equal.
Dorsiflexion of the great toe is equal and adequate.
Dorsiflexion of the foot is equal. There is a negative
straight leg raising test bilaterally both sitting and
lying.
There is generalized muscle spasm noted
throughout the lumbar spine paravertebral muscles. Head
is normocephalic.
Eyes are PERLA [normal oculomotor
functions], EOMI [extraocular movements intact].
Fundoscopic is normal.
Hearing is adequate.
9
Neurovascular examination is intact.
Assessment: cephalgia [headache], doubt migraine; ls
[lumbar spine] strain; poss [possibly] drug seeking
Plan: call board of pharmacy and see if he is getting
medication elsewhere; schedule for physical therapy;
relafen, norflex, small amount of lortab; RTC if no
improvement or any problems.
(Tr. at 234-35.)
On May 17, 2005, Jack Henry, D.C., Spinal Imaging, Inc.,
reported to Dr. Mike Kominsky that an x-ray of Claimant’s cervical,
thoracic,
and
alterations.”
lumbar
spine
showed
“spinal
biomechanical
(Tr. at 237-38.)
On June 23, 2005, Dr. Hultman reported:
Physical Examination: Alert and oriented in no acute
distress....Lumbar spine shows a full Range of Motion.
There is no deformity and no point tenderness...There is
a negative straight leg raising test bilaterally both
sitting and lying. There is generalized muscle spasm
noted
throughout
the
lumbar
spine
paravertebral
muscles...
Assessment: ls strain; rule out disc ds [disease].
Plan: MRI lumbar spine; after MRI will get pain clinic
referral; Rx [prescription] refills written; add
neurontin.
(Tr. at 233.)
On July 20, 2005, Dr. Hultman reported that Claimant
reports that his current dosage of meds helps but doesn’t
knock out the pain completely; wants to know if his pain
medication can be increased; pain is mid to low back;
wants an opinion on whether or not he is disabled because
DHHR case worker is asking him about it; worker Connie
Wallace told him yesterday that he needs to get a job;
reports that he wants to work but pain is too severe...
10
Physical Examination: Alert and oriented in no acute
distress...Minimal muscle spasm is noted in the thoracic
paravertebral muscles. There is full Range of Motion to
the thoracic spine...There is no point tenderness. No
deformity is noted. No scoliosis is noted. The lumbar
spine shows a full Range of Motion.
There is no
deformity and no point tenderness...There is a negative
straight leg raising test bilaterally both sitting and
lying.
There is generalized muscle spasm noted
throughout the lumbar spine paravertebral muscles.
Assessment: thoracic strain; lumbar strain.
Plan: zonegran, lortab; [I] recommend he find another Dr.
We disagree on the lortab.
(Tr. at 230-32.)
On December 5, 2005, Dr. Henry reported to Dr. Mike Kominsky
that an x-ray of Claimant’s lumbar spine showed: “1) Spinal
biomechanical
alterations
noted.
2)
Spondylolytic
spondylolisthesis at the L5 level on S1 of approximately five
percent.”
On
(Tr. at 236.)
January
11,
2006,
Jennifer
Boyd,
PA-C
[physician’s
assistant-certified] stated that Claimant visited New River Health
Association to establish care at that facility:
CC [chief complaint]: Back pain, jaw pain, and bipolar
disorder.
HPI [history of the present illness]: This gentleman is
wishing to establish care here for chronic medical
problems, including back pain that started in 1998 after
an MVA [motor vehicle accident] in which he was thrown
against the dashboard. Did not lose consciousness, but
has suffered thoracic and lumbar pain ever since
then...Treated by Dr. Kominsky...He saw Karen Hultman for
a time for medication.
States...Lortab was the only
thing that helped. He tried to get her to increase it to
2 tabs, and his understanding is that he was discharged
from care at that time. He had a tooth pulled recently
11
and feels that his jaw might have been pulled or strained
at that time...Finally, he states that he was seen at
FMRS in 10-05 and diagnosed with bipolar disorder...
Review of Systems: Positive for occasional radiation of
pain down the legs. Negative for weakness. Positive for
headaches...
Impression:
strains.
Depression
-
311.
Thoracic
and
lumbar
Plan: I recommended that we will not be treating him with
narcotics given that he is transferring care from another
provider, and he has a history of depression...He agreed
to try an anti-depressant and, in fact, requested it.
(Tr. at 229.)
On May 23, 2007, Claimant presented to the Raleigh General
Hospital Emergency Room [“ER”] “complaining of numbness to the
right side of his face an [sic; and] to the left side of his body.”
(Tr. at 279.)
On May 24, 2007, Fred P. Tzystuck, M.D. noted:
He says that two days ago he had a mild headache, which
he describes as a migraine...The patient states that he
follows a regular physician for this, and she gave him
“migraine medication”.
This completely relieved his
pain; however, the patient states that after his headache
had gone away, he developed these odd tingling sensations
on the right side of his face and the left side of his
body. Denies any weakness, fevers, chills, and denies
any current headache. Denies any nausea, vomiting, or
chest pain.
On physical examination, the patient has no objective
findings. His tactile discrimination is less than 2 mm
bilaterally. Reflexes are 2+ bilaterally. Strength is
5/5 bilaterally throughout all extremities. Cerebellar
function appears to be intact. He has no truncal or gait
ataxia.
Rapid alternating hand movements are within
normal limits. He has no dysdiadochokinesia.
I discussed the CT findings with Dr. Reeseman, who said
12
that there is some evidence of a demyelination in the
posterior horns of the ventricles and the parenchyma just
behind the ventricles. He says that this needs to be
further evaluation with an MRI. I discussed the case
with Dr. Dy, who agrees to follow up with the patient as
an outpatient, agreeing to see him tomorrow...The patient
denies any pain to me. Denies any signs or symptoms that
would suggest subarachnoid hemorrhage, etc. The patient
is afebrile. Negative Kernig’s and Brudzinski’s.
(Tr. at 279-80.)
On May 24, 2007, Henry L. Setliff, M.D. reviewed Claimant’s CT
brain scan without contrast.
Dr. Setliff concluded:
There are no CT signs of intracranial hemorrhage, a mass,
or midline shift. Ventricular caliber is normal. There
is no calvarial fracture.
Mucoperiosteal thickening
involves the ethmoid air cells and both maxillary antra.
The frontal sinuses are minimally involved, as are the
spenoid sinuses. Impression: Unenhanced CT examination
of the brain demonstrates evidence of mild pansinusitis.
Intracranially, the study is negative.
(Tr. at 283.)
On May 31, 2007, Robert Smith, M.D., Plateau Medical Center,
reviewed Claimant’s MRI of the brain with and without contrast.
(Tr. at 301-02.)
He concluded: “Impression: Periventricular and
subcortical foci of signal intensity changes, most consistent with
demyelinating white matter disease, most likely multiple sclerosis.
No evidence for active white matter demyelination at the time of
this study.”
(Tr. at 302.)
On June 22, 2007, Barry Vaught, M.D. stated that Claimant had
been referred to him by Mariana Didyk, PA-C, New River Health
Association, for evaluation following an abnormal MRI scan:
In trying to elicit a history of symptoms suggestive of
13
multiple sclerosis, Mr. Settle does not describe many
lateralizing neurological abnormalities. He denies any
history of vision loss. He has had very brief periods of
left arm numbness...He does describe a long history of
short term memory loss...He does report using marijuana,
cocaine, Percocet, and hydrocodone in the past but says
that marijuana is the only drug that he is currently
using.
(Tr. at 295.)
On July 7, 2007, Claimant underwent testing by at Charleston
Area Medical Center.
(Tr. at 285-91.)
Kuravilla John, M.D.,
stated in a neurodiagnostic report to Barry Vaught, M.D.: “The
responses are within normal limits.
Normal study.”
(Tr. at 291.)
On July 24, 2007, Dr. Vaught stated that Claimant
is complaining of multiple episodes of blurred and double
vision which he states have been present for the last 2-3
weeks...Later in the interview, he states that this has
been present for years. An accurate history is difficult
to obtain as he states different time lines for the
presence of blurred and double vision. His mother is in
the room with him today and states that Dr. Janey, an
opthalmologist in Oak Hill, has suggested that Mr. Settle
has glaucoma, yet Dr. Janey does not believe that it is
advanced enough to treat.
(Tr. at 293.)
On
August
3,
2007,
Dr.
Vaught
diagnosed
Claimant
“demyelinating central nervous system” stating:
In reviewing his history, I cannot find any particular
episodes that sound suggestive of multiple sclerosis
attack...His neurological examination is essentially
normal except for mildly exaggerated HIPAs that I cannot
be certain that is bilateral afferent pupillary defects.
Otherwise, his neurological examination was normal...For
now, we will not consider any further medication, but
instead try to seal up an accurate diagnosis before
proceeding.
14
with
(Tr. at 297.)
On September 4, 2007,
Mariana Didyk, PA-C, New River Health
Association, stated:
Patrick comes back in today stating...he never went back
for his second attempt at spinal tap to try and help
diagnose his condition to see if this really is MS or
not. He evidently tried a number of times to ask Dr.
Vaught for pain medication. Dr. Vaught declined. He
wanted strong pain medication...I have confronted Patrick
today with the fact that I think he knows why Dr. Vaught
refused him the pain medication but he denies any
knowledge of this. After I asked his mother to leave the
room, I tell him that there was a note in Dr. Vaught’s
report stating that he had admitted to using cocaine,
Percocet, Lortab and other narcotics illegally and that
we do not prescribe narcotic pain medication to people
who have this kind of a history...I have also really
emphasized today to Patrick that he needs to get the
spinal tap done so that we can come up with a diagnosis
for his condition to know how to treat it. Otherwise, we
are left only with prescribing pain medication which is
not a good answer to his situation.
He voices
understanding but does not agree that this is the problem
and states that he will think about rescheduling for a
spinal tap but he is not sure he will do it.
(Tr. at 387.)
On November 14, 2007, Marcel Lambrechts, M.D. stated in a form
titled
Case
Analysis:
“Even
though
he
was
found
to
have
MS
[multiple sclerosis] it is not severe at this time and he is not
restricted yet.
No changes needed in the completed RFC.”
(Tr. at
323.)
On November 19, 2007, Dr. Lambrechts stated in a form titled
Case Analysis: “I would feel better if we got a CE [clinical
evaluation] with ROM [range of motion] now as he has had much new
info for the past several months.
15
It probably will still be non
severe but it could change suddenly.”
(Tr. at 326.)
On October 11, 2007, Christina M. Cavozos, M.D. stated: “Left
shoulder, three views...There is no fracture or dislocation.” (Tr.
at 300.)
On December 6, 2007, a State agency medical source completed
a physical examination report regarding Claimant. (Tr. at 328-38.)
The evaluator, Serafino S. Maducdoc, Jr., M.D., reached these
conclusions regarding Claimant: “This 25-year-old male, white,
single has migraine headaches, peptic ulcer disease, and bipolar
disorder with chronic depression and anxiety state.
He also has
learning disability and possibly has multiple sclerosis.”
(Tr. at
331.)
On December 17, 2007, a State agency medical source completed
a physical residual function capacity assessment of Claimant. (Tr.
at 339-46.) The evaluator, Marcel Lambrechts, M.D. stated that
Claimant’s primary diagnosis was “possibly M.S. early” and the
secondary diagnosis was “migraine, back, right shoulder pain.”
(Tr. at 339.)
He concluded that Claimant could occasionally lift
and/or carry 50 pounds, frequently lift and/or carry 25 pounds,
stand and/or walk and sit about 6 hours in an 8-hour workday, and
had an unlimited ability to push and/or pull (including operation
of hand and/or foot controls). (Tr. at 340.) Dr. Lambrechts found
that Claimant could frequently do all the postural limitations with
the exception of balancing and stooping, which he opined Claimant
16
could do occasionally.
(Tr. at 341.)
He found Claimant had no
manipulative, visual, or communicative limitations.
43.)
(Tr. at 342-
Claimant had no environmental limitations save to avoid
concentrated exposure to temperature extremes, fumes, odors, dusts,
gases, poor ventilation, etc.
(Tr. at 343.)
Dr. Lambrechts
concluded:
I have reviewed the ALJ decision and the current CE and
it does not show a severe disability. He may have early
signs of M.S. and other minor problems but it does not
seem severe. I feel that he could work if he wanted to
and he should be able to do medium work.
RFC is as
noted.
(Tr. at 344.)
On February 25, 2008, Joan Worthington, D.O., New River Health
Association, states Claimant “reports having had a history of
migraine headaches, low back pain and scoliosis...Not taking any
meds at this time...In no acute distress...Opiate contract.” (Tr.
at 386.)
On March 10, 2008, a State agency medical source completed a
physical residual function capacity assessment of Claimant.
(Tr.
at 347-55.) The evaluator, Rabah Boukhemis, M.D. stated that
Claimant’s primary diagnosis was “MS ?” and the secondary diagnosis
was “back pain.”
(Tr. at 347.)
He concluded that Claimant could
occasionally lift and/or carry 50 pounds, frequently lift and/or
carry 25 pounds, stand and/or walk and sit about 6 hours in an 8hour workday, and had an unlimited ability to push and/or pull
(including operation of hand and/or foot controls).
17
(Tr. at 348.)
He
commented:
worsening.
“presumptive
MS
but
no
new
evidence
Back pain, old spondylolisthesis likely.”
of
Id.
neuro
Dr.
Boukhemis found that Claimant could frequently do all the postural
limitations with the exception of climbing and crawling, which he
opined Claimant could do occasionally.
(Tr. at 349.)
He found
Claimant had no manipulative, visual, or communicative limitations.
(Tr. at 350-51.) Claimant had no environmental limitations save to
avoid concentrated exposure to temperature extreme heat, humidity,
vibration,
hazards,
and
fumes,
odors,
dusts,
gases,
poor
ventilation, etc. (Tr. at 351.) Dr. Boukhemis commented regarding
Claimant’s symptoms: “Main complaints pain, MS ? Paresthesia.
Mostly credible.”
(Tr. at 352.)
On June 18, 2008, Dr. Worthington stated that Claimant “here
for two physical exam forms to be filled out, one is a DHHR
physical, the other is for his lawyer, Mr. Shumate...In no acute
distress...Impression: Chronic low back pain...I’ve also filled out
the physical forms limiting his lifting...Opiate contract.”
(Tr.
at 385.)
On June 18, 2008, Dr. Worthington filled out a form titled:
West Virginia Department of Health and Human Resources Medical
Review Team (MRT) General Physical (Adults). (Tr. at 382-84.) She
checked “normal” for all areas except “psychiatric” (which she left
blank) and “orthopedic” wherein she handwrote: “Limited ROM forward
bending, rotation & extension.”
(Tr. at 383.)
18
Her diagnosis:
“Major: Chronic low back pain; Minor: Depression/Insomnia.”
Id.
She marked “No” to the questions “Is applicant able to work fulltime at customary occupation or like work?”; “Is applicant able to
perform other full time work?” and “Should applicant be referred
for vocational rehabilitation?”
(Tr. at 383-84.)
In response to
the question: “What work situations, if any, should be avoided?”
Dr. Worthington responded: “Lifting more than 10-15 lbs.”
(Tr. at
383.)
On June 18, 2008, Dr. Worthington also filled out a form
titled:
“Medical
Assessment
of
Ability
to
do
Work-related
Activities (Physical).” (Tr. at 389-93.) She marked that Claimant
could occasionally and frequently lift/carry 15 pounds; stand/walk
for 2 hours, 45 minutes without interruption; and sit for 1-2 hours
in an 8-hour workday, 20 minutes without interruption.
389-90.)
(Tr. at
She opined that Claimant could never climb, balance,
stoop, crouch, or crawl, but could occasionally kneel.
(Tr. at
390.) She marked that Claimant’s reaching, handling, feeling,
seeing and hearing were affected by his impairment, but that his
pushing/pulling and speaking were not affected. (Tr. at 391.) His
only environmental restrictions were heights and moving machinery.
Id.
On June 26, 2008, Dr. Worthington stated in office notes that
Claimant visited because “he is feeling crawling sensations on
himself and has nerve problems.”
19
(Tr. at 394.)
She diagnosed
“anxiety” and “chronic low back pain.”
Id.
She noted his opiate
contract and prescribed Zantac 150, Flexeril 10 mgs, and Naprosyn,
500 mg.
Id.
On September 8, 2008, Dr. Worthington’s office notes state
that Claimant
is here for refills...He reports falling down 4 steps,
caught himself on his left elbow and struck his back on
the left side as well the other day...He currently is not
working. He baby-sits his two-year-old and five-monthold...Impression: Low back strain/sprain, possible rib
contusion...
Plan: I will have him return with his Hemoccult cards to
the lab. Urine specimen tomorrow. X-ray on left back
ribs and thoracic spine tomorrow. MRI on 09/12/08 at PMC
[Plateau Medical Center]. This is for the lumbar/chronic
back pain. Zantac 150...Flexeril 10 mg...have given him
samples of Celebrex 200 mg...Prevacid 30 mg...Opiate
contract...Naprosyn 500 mg.
(Tr. at 395.)
On September 11, 2008, Benjamin Strong, M.D., Plateau Medical
Center, stated in a radiology report for an MRI of Claimant’s
Lumbar Spine:
There is no evidence of spinal canal narrowing.
The conus medullaris is normal.
There is no evidence of epidural masses or hemorrhage.
The visualized portions of the sacroiliac joints are
unremarkable.
The facet joints are normal.
The extraspinous soft tissues are normal.
The visualized intra-abdominal structures are normal.
IMPRESSION: Bilateral L5-S1
evidence of spondylolysis.
degeneration.
(Tr. at 398.)
20
spondylolysis, with no
No significant disc
On April 27, 2009, May 4, 2009, and May 18, 2009, Claimant had
office visits with Serafino S. Maducdoc, Jr., M.D.
(Tr. at 399-
402.) The notes are handwritten and largely illegible.
words
are
“chronic
lumbo-sacral
psoriasis of both knees.”
Legible
strain...insomnia...anxiety...
Id.
Psychiatric Evidence
On April 15, 1991, David G. Sweet, Ed. S., Certified School
Psychologist, did a psychological evaluation of Claimant (nine
years old) for the Fayette County Board of Education. (Tr. at 27476.)
Dr. Sweet gave Claimant the WISC-R test and concluded:
“Patrick obtained a Full Scale IQ of 76 ...which suggests that his
overall level of cognitive functioning is in the Borderline range.”
(Tr. at 275.)
On January 17, 2001, Tim Brooks, M.A., Licensed Psychologist,
and Kelly Melvin, M.Ed., Supervised Psychologist, provided an Adult
Mental Profile of Claimant.
(Tr. at 270-73.)
In the report, they
made these findings:
Mental Status Examination: Mr. Settle arrived at the
interview on time. Dress and grooming appeared casual
and within the borderline range. Mr. Settle was dressed
in a dirty t-shirt with denim coveralls and was wearing
boots.
His posture was slouched and his gait was
unremarkable...His attitude was not motivated.
Mr.
Settle made intermittent eye contact throughout the
interview and his verbal responses were usually one to
two words in length.
He was able to carry on a
conversation, but introversion was noted. Mr. Settle’s
speech was relevant and coherent, but the pace was slow.
Mr. Settle was alert and oriented to person, place and
time. He was not able to state a reason for why he was
at the interview, however...Mr. Settle’s mood was judged
21
to be euthymic, but his affect was restricted. There was
no evidence of unusual thought processes, and his thought
content was unremarkable. Mr. Settle denied experiencing
hallucinations or illusions.
Mr. Settle’s insight
appeared to be limited.
His judgment was moderately
deficient based upon his comprehension scaled subtest
score.
Mr. Settle denied past or present suicidal
ideation. Mr. Settle denied past or present homicidal
ideation. Immediate memory is normal, as Mr. Settle was
able to recall four of four items immediately. However,
recent memory was markedly deficient as he was able to
recall only one of four items after 15 minutes. Remote
memory appeared to be mildly impaired, as he was a poor
historian.
He was unable to give many dates and
description of events were often vague. Concentration
appeared to be within normal limits, as he was able to
give serial 3's with one mistake. Psychomotor behavior
was unremarkable. During the evaluation Mr. Settle was
both quiet and reserved.
Intellectual/Achievement
IQ Scale
Score
Verbal IQ
71
Performance IQ 72
Full Scale IQ 69...
Assessment: WAIS-III results Index
Score
Verbal Comprehension
72
Perceptual Organization 78
WRAT-III results Subject
Standard Score
Reading
76
Spelling
69
Arithmetic
68
Grade Level
4
4
4
Validity: Obtained scores are considered valid, but a low
estimate of Mr. Settle’s optimal cognitive function
capabilities...He has a history of full-time special
education placement due to self-reported reading and
writing difficulties...Obtained achievement scores are
consistent with IQ scores...
Diagnoses (using DSM-IV criteria):
Axis I V71.09 No diagnosis
Axis II V62.89 Borderline intellectual functioning
Axis III Shoulder pain, back pain, knee pain, as
reported by claimant.
Capability Statement: It is my opinion that Mr. Settle is
presently capable of managing any awarded money in his
own best interests.
22
(Tr. at 271-73.)
On
January
16,
Psychologist, and
2004,
Dale
M.
Rice,
M.A.,
Licensed
Kelly Rush, M.A., Supervised Psychologist,
provided a psychological evaluation of Claimant. (Tr. at 265-69.)
They
made
these
general
observations
during
the
clinical
evaluation: “He walked with a normal gait and maintained a slouched
posture...He has no apparent vision or hearing problems...No speech
problems
well...He
were
noted...He
reports
was
appropriate
learning
and
related
problems...difficulty
fairly
reading
instructions, filling out paper work and reading a newspaper.” (Tr.
at 265-66.) Their findings for the Mental Status Examination were:
Orientation - He was alert throughout the evaluation. He
was oriented to person, place, time and date.
Mood - Observed mood was dysphoric.
Affect - Affect was mildly restricted.
Thought Processes - Thought processes appeared logical
and coherent.
Thought Content - There was no indication of delusions,
obsessive thoughts or compulsive behaviors.
Perceptual
He
reports
no
unusual
perceptual
experiences.
Insight - Insight was fair.
Judgment - Moderately deficient based on his response to
the finding the letter question. He stated “hand it to
the person.”
Suicidal/Homicidal Ideation - He denies suicidal and
homicidal ideation.
Immediate Memory - Immediate memory was within normal
limits. He immediately recalled 4 of 4 items.
Recent Memory - Recent memory was moderately deficient.
He recalled 2 of 4 items after 30 minutes.
Remote Memory - Remote memory was within normal limits
based on ability to provide background information.
Concentration - Concentration was within normal limits
based on his ability to do serial 3's.
Psychomotor Behavior - Normal.
23
DIAGNOSTIC IMPRESSION
AXIS I:
V71.09
No Diagnosis
AXIS II: V62.89
Borderline Intellectual Functioning
(By Record)
AXIS III: By self report: back, left shoulder and neck
problems and headaches.
RATIONALE
Mr. Settle was given the diagnosis of Borderline
Intellectual Functioning (By Record) based on the
following criteria: a history of a valid FSIQ of 76.
DAILY ACTIVITIES
Typical Day: Mr. Settle goes to
gets up at 12:30 p.m. He gets up,
with his brother, watches tv,
brother, watches tv, goes home,
talks to his girlfriend and goes
bed at 10:00 p.m. and
takes a shower, visits
eats, talks with his
listens to the radio,
to bed...
SOCIAL FUNCTIONING...within normal limits based on his
interaction with the examiner.
CONCENTRATION...within normal limits based on his ability
to do serial 3's.
PERSISTENCE...within normal limits based on the mental
status examination.
PACE...within normal limits based on the mental status
examination.
CAPABILITY TO MANAGE BENEFITS
Mr. Settle appears capable to manage any benefits he
might receive.
PROGNOSIS: Fair.
(Tr. at 267-68.)
On March 24, 2005, Shivkumar L. Iver, M.D., Psychiatrist, FMRS
Health
Systems,
Inc.,
provided
a
psychiatric
evaluation
Claimant:
IDENTIFYING INFORMATION
Patient is a 22 year old white male who presents to the
clinic complaining of symptoms of Attention Deficit
Disorder {“ADD”]. Patient’s history is vague and patient
contradicts himself frequently during the interview.
Patient reports that he did not have symptoms of ADD much
as a child, but currently his symptoms of ADD have gotten
24
of
worse especially after he allegedly got electrocuted why
[sic; while] he was working in a friend’s house.
Patient’s symptoms are inconsistent.
Patient reports
poor attention span and says that he cannot concentrate;
however, patient told the therapist during intake that he
has symptoms of depression and was having hallucinations.
During this interview patient denies this and says his
mood is euthymic and his energy level is fair. Patient
denies any neurovegatative symptoms of depression.
Patient admits to using marijuana at least three times a
week for the past few years. When asked if he would like
to take treatment for that, patient denies it. Patient
appeared to be medication seeking and said the only
medicine that he feels would help him would be something
for ADD. When patient was offered Strattera patient
reported that he has glaucoma and he has read that he
cannot take Strattera if he has glaucoma. When patient
was asked to produce a medical report about his glaucoma
he started to get vague and evasive.
Patient
subsequently stated that he needed Adderall for his
treatment.
Patient was informed that Adderall was a
psychostimulant and that it cannot be given as he is
abusing marijuana at present. Patient started to get
defensive when informed of this...
Patient has lost his drivers license in the past, but is
vague about the reason. He admits to past charges of
under age consumption of alcohol and riding a motorcycle
without a helmet and then driving on a suspended license.
Patient has no employment history. Patient left school
in the 11th grade...
MENTAL STATUS EXAMINATION
Patient is alert and oriented x3. Fairly related. Mood
is euthymic. Affect is constricted. Speech is normal in
rate, tone and volume. No delusions. No auditory or
visual hallucinations.
No suicidal or homicidal
ideations or plan. Thought process is mostly logical and
goal directed. Insight and judgment is fair.
DIAGNOSTIC IMPRESSION
Axis I: Attention Deficit Hyperactive Disorder, NOS
R/O [rule out] Malingering
Cannabis Abuse...GAF - 60-70
TREATMENT PLAN
Patient will be assessed in next interview along with
counselor to see appropriate treatment for his symptoms.
25
Patient was asked if he would like to come back for his
next visit to get a more detailed history, as the history
he presented to me was different from what he had given
to the case manager. Patient left the clinic without an
appointment.
(Tr. at 245-46.)
On March 28, 2005, F. Joseph Whelan, M.D., FMRS Health
Systems, Inc. Pharmacologic Management, reported that Claimant’s
physician is Karen Hultman, D.O. and that Claimant
comes today for appointment.
He has been somewhat
preoccupied with having ADHD, although his mother who
came with him does not have that preoccupation...Patient
has a history of receiving psychiatric treatment
approximately two years ago, which he does not recall
now.
He apparently had a diagnosis in the past of
Adjustment Disorder with mixed features...Mental status
examination reveals a well developed well nourished 22
year old thin Caucasian male accompanied by his mother.
He was not suicidal, homicidal or psychotic...He seemed
to be well motivated toward treatment.
DIAGNOSTIC IMPRESSION
Axis I: Bipolar Disorder without psychotic features...
GAF - 30 current, for the year - 60.
Prognosis: Good with treatment.
TREATMENT PLAN
1) Case management and crisis intervention as
2) Treatment for Bipolar Disorder with
Lamictal orange starter pack, Lexapro 10 mg.
three days then 1 pill daily. Trileptal 150
[twice a day].
3) Will return in two weeks or as needed.
indicated.
continuing
½ pill for
mg. b.i.d.
(Tr. at 243-44.)
On April 11, 2005, Dr. Whelan reported:
Patrick returns at this point claiming the medicine has
made him worse, more aggravated, more irritated and so on
so he quit the meds for five days. He said he feels
better without these medications so I therefore told him
that we would not keep him on them.
26
Treatment Plan: Return p.r.n. [according to need] or as
needed.
(Tr. at 242.)
On November 8, 2007, a State agency medical source completed
a Psychiatric Review Technique form [“PRTF”] for the time period
June 15, 2007 to present. (Tr. at 305-18.) The evaluator, Timothy
Saar, Ph.D., licensed psychologist, marked that Claimant had no
degree of limitation regarding restriction of activities of daily
living and difficulties in maintaining social functioning, moderate
degree
of
limitation
concentration,
regarding
persistence
or
difficulties
pace,
and
decompensation, each of extended duration.
in
no
maintaining
episodes
of
(Tr. at 315.)
He
marked that evidence does not establish the presence of the “C”
criteria.
(Tr. at 316.)
Dr. Saar noted: “Claimant did not return
forms. ALJ Decision of 5/5/06 and [sic] given controlling weight.
Evidence does not support severe limitations in F.C. [functional
capacity] due to a mental impairment.
Decision - RFC [“Residual
Functional Capacity”] assessment necessary.”
(Tr. at 317.)
On November 8, 2007, Dr. Saar completed a Mental Residual
Functional Capacity Assessment form.
(Tr. at 319-21.) He marked
that Claimant was not significantly limited in the ability to
remember
locations
and
work-like
procedures;
understand
and
remember very short and simple instructions; carry out very short
and
simple
instructions;
sustain
an
ordinary
routine
without
special supervision; work in coordination with or proximity to
27
others without being distracted by them; make simple work-related
decisions; interact appropriately with the general public; ask
simple questions or request assistance; accept instructions and
respond appropriately to criticism from supervisors; get alone with
coworkers
or
peers
without
distracting
them
or
exhibiting
behavioral extremes; maintain socially appropriate behavior and to
adhere to basic standards of neatness and cleanliness; respond
appropriately to changes in the work setting; be aware of normal
hazards and take appropriate precautions; travel in unfamiliar
places or use public transportation; and set realistic goals or
make plans independently of others.
(Tr. at 319-20.)
He marked
that Claimant was moderately limited in the ability to understand
and
remember
detailed
instructions;
carry
out
detailed
instructions; maintain attention and concentration for extended
periods; perform activities within a schedule, maintain regular
attendance,
and
be
punctual
within
customary
tolerances;
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.
Id.
Dr. Saar concluded: “Clmt [claimant] is moderately limited as
noted.
Evidence does not support severe limitations in F.C.
[functional capacity] due to a mental impairment.
and perform repetitive work-like activities.”
Clmt can learn
(Tr. at 321.)
On November 15, 2007, Dr. Saar stated in a form titled Case
28
Analysis: “I have reviewed the new ADL [activities of daily living]
and they do not change the PRTF of 11/08/07.
basically credible.”
Clmt appeared
(Tr. at 324.)
On April 30, 2008, a State agency medical source completed a
mental status examination of Claimant.
(Tr. at 356-62.)
The
evaluator, Misti Jones-Wheeler, M.S., a licensed psychologist,
concluded:
MENTAL STATUS EXAMINATION: Appearance: Hazel eyes and
dark brown hair with some facial hair. He was casually
dressed and wore cutoff pants and a T-shirt with no coat
in 40-degree weather. Attitude/Behavior: Cooperative.
Speech: Speech was noted to be of normal tones, clear and
concise. Orientation: He was oriented x4. Mood: Mood
was depressed.
Affect: Affect was blunted.
Thought
Processes: Stream of thought is within normal limits.
Thought Content: No indication of hallucinations or
illusions. Insight: Fair. Psychomotor Behavior: Within
normal limits, as evidenced by clinical observation.
Judgment: Moderately deficient, based on the claimant’s
answer to the “mail it” question. He stated that he would
keep walking and not pick up the envelope.
Suicidal/Homicidal Ideation: Absent. Immediate Memory:
Immediate memory is moderately deficient. He immediately
recalled two of four words. Recent Memory: Recent memory
was severely deficient. He recalled zero of four words
after a 30-minute delay. Remote Memory: Remote memory
was mildly deficient, based on some inability to recall
details of his personal history. It did not appear that
the claimant put forth consistent effort to remember the
words that were presented to him. He did not appear to
be
motivated
during
the
current
examination.
Mildly
deficient,
based
on
some
Concentration:
difficulties performing serial threes.
Persistence:
Moderately impaired, based on behavioral observations
during the examination. Pace: Noted to be within normal
limits, as observed during the examination.
Social Functioning: During the Evaluation: The claimant
was noted to be somewhat distant and exhibited very
little eye contact. He showed no evidence of humor.
Self-Reported: Mr. Settle reports having a couple of
29
friends and states that he enjoys fishing and goes
regularly. He denies having other hobbies.
DAILY ACTIVITIES: Typical Day: Mr. Settle reports that
his arise and bedtimes vary. He stated that he can do
most daily living skills. He grooms independently and he
does the chores that his parents decide not to do. He
does not shop with his parents, overall. He stated that
it is “too hectic.” Activities List: The claimant stated
that he spends most of his day walking up and down the
road to keep from hurting. He stated that it helps his
back to walk.
DIAGNOSTIC IMPRESSIONS (DSM-IV):
Axis I
311
Depressive disorder, not otherwise
specified
305.2
Cannabis abuse, sustained, full
remission
Axis II
V62.89
Axis III
Borderline intellectual functioning,
by history
Multiple
medical
claimant report)...
problems (Per
PROGNOSIS: Guarded.
CAPABILITY: This claimant might exhibit difficulties
managing his own finances.
(Tr. at 359-61.)
On May 10, 2008, a State agency medical source completed a
Psychiatric
Review
Technique
form.
(Tr.
at
363-76.)
The
evaluator, Debra Lilly, Ph.D., licensed psychologist, marked that
Claimant had a mild degree of limitation regarding restriction of
activities of daily living, and difficulties in maintaining social
functioning, moderate degree of limitation regarding difficulties
in maintaining concentration, persistence or pace, and no episodes
of decompensation, each of extended duration.
30
(Tr. at 373.)
She
marked that evidence does not establish the presence of the “C”
criteria.
(Tr. at 374.)
Dr. Lilly noted:
The ALJ decision in the record clearly should have
controlling weight.
It is very consistent with the
findings in file at this time. The claimant’s mental
status reflect that he was inconsistent in his effort.
One cannot have an impaired immediate memory and have
moderate concentration issues. The CE notes that his
persistence in tasks was impaired.
He pays his own
bills.
The chart reflects that he seeks pain
medications, but does not seek psychotropic medications.
The claimant is not considered to be totally credible
with regard to the severity of his mental health
complaints.
(Tr. at 375.)
On May 10, 2008, Dr. Lilly completed a Mental Residual
Functional Capacity Assessment form.
(Tr. at 377-79.) She marked
that Claimant was not significantly limited in the ability to
remember
locations
and
work-like
procedures;
understand
and
remember very short and simple instructions; carry out very short
and simple instructions; perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances;
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 sustain an ordinary routine without special supervision;
work in coordination with or proximity to others without being
distracted by them; make simple work-related decisions; interact
appropriately with the general public; ask simple questions or
request assistance; accept instructions and respond appropriately
31
to criticism from supervisors; get alone with coworkers or peers
without
distracting
them
or
exhibiting
behavioral
extremes;
maintain socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness; respond appropriately to
changes in the work setting; be aware of normal hazards and take
appropriate precautions; travel in unfamiliar places or use public
transportation; and set realistic goals or make plans independently
of others.
(Tr. at 377-78.)
She marked that Claimant was
moderately limited in the ability to understand and remember
detailed instructions; carry out detailed instructions; maintain
attention and concentration for extended periods.
Id.
Dr. Lilly concluded: “The ALJ of 2006 is given controlling
weight.
The claimant would be able to learn, recall, and perform
simple, unskilled, work-like activities.”
(Tr. at 379.)
Claimant’s Challenges to the Commissioner’s Decision
Claimant asserts that the Commissioner’s decision is not
supported by substantial evidence because (1) the ALJ failed to
give the opinions of treating physician Joan Worthington, D.O.
significant and controlling weight; and (2) he was denied a fair
hearing due to the conduct of the medical expert during the
administrative hearing.
(Pl.'s Br. at 11-15.)
The Commissioner responds that the ALJ’s decision is supported
by
substantial
controlling
evidence
regulations
because
in
(1)
evaluating
32
the
the
ALJ
followed
opinions
of
the
Dr.
Worthington; and (2) the ALJ afforded Claimant a fair hearing.
(Def.’s Br. at 8-11.)
Evaluating the Opinions of Treating Sources
Claimant first asserts that the Commissioner’s decision is not
supported by substantial evidence because the ALJ failed to give
the
opinions
of
treating
physician
significant and controlling weight.
Joan
Worthington,
D.O.
(Pl.'s Br. at 11-13.)
Specifically, Claimant argues:
Dr. Worthington’s medical assessment form stated that
plaintiff could not complete an eight (8) hour work
on a sustained basis.
The ALJ relied heavily on
opinion of the medical expert witness to discredit
opinion of Dr. Worthington.
the
day
the
the
The ALJ does not have the power to discount the
functional conclusions of treating physicians on the
basis that such conclusions are not supported by clinical
findings because he does not “possess” any medical
“expertise”. Wilson v. Heckler, 743 F. 2d 218 (4th Cir.
1984)...
If the ALJ determines that a treating physician’s opinion
should not be afforded controlling weight, the ALJ must
analyze and weigh all the evidence of record, taking into
account the factors listed in 20 C.F.R. §§ 404.1527 and
416.927(d)(2)-(6)...
Due to the failure of the ALJ to provide controlling
weight to the opinion of the plaintiff’s treating
physician regarding the plaintiff’s functional capacity,
without persuasive explanation, the ALJ’s finding that
the plaintiff can perform work at the medium exertional
level with the above-described limitations is erroneous.
(Pl.'s Br. at 11-14.)
The Commissioner responds that the ALJ properly evaluated the
opinions of Dr. Worthington.
(Def.’s Br. at 8-11.)
33
Specifically,
the Commissioner asserts:
The ALJ followed the controlling regulations in
evaluating Dr. Worthington’s check-box assessment. Dr.
Worthington’s opinion was entitled to no special
significance because it was on an issue reserved to the
Commissioner, and was inconsistent and unsupported by the
other objective medical findings.
Contrary to Plaintiff’s belief, the regulations empower
an ALJ, not a claimant’s physician, to determine whether
a claimant is disabled as defined by the Act. 20 C.F.R.
§ 416.927(e)...
Even if Dr. Worthington’s opinion was entitled to any
particular significance, “[c]ircuit precedent does not
require that a treating physician’s testimony ‘be given
controlling weight.’” Craig, 76 F. 3d 585, 590 (4th Cir.
1996)(quoting Hunter v. Sullivan, 993 F.2d 31, 35 (4th
Cir. 1992)). It will be given controlling weight only if
it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques,” and it is “not
inconsistent with other substantial evidence” in the
record. 20 C.F.R. § 416.927(d)(2),(e). Conversely, if
the opinion does not meet that criteria, “it should be
accorded significantly less weight.” Craig, 76 F.3d at
590.
The ALJ reasonably afforded less weight to Dr.
Worthington’s opinion of work-preclusive limitations in
light of the persuasive evidence to the contrary.
Dr. Worthington’s assessment, which was in a check-box
form and completed after examining Plaintiff on only two
occasions, was undermined by the medical evidence.
Specifically, laboratory testing indicated that Plaintiff
had no significant disc degeneration (Tr. 53, 398), and
physical examinations showed that Plaintiff had negative
straight leg-raise testing and that his back had either
full or 75% motion on several occasions (Tr. 232-33, 235,
246, 256-57, 385-86, 394-95).
Further undermining Dr. Worthington’s assessment of workpreclusive limitations was her statement in treatment
notes that Plaintiff was “in no acute distress” (Tr. 38586, 394-95). Dr. Worthington’s clinical findings were
also inconsistent with her assessments. For example, she
assessed that Plaintiff’s handling, feeling, seeing, and
hearing were affected by the back impairments in the
check-box for (Tr. 391). Yet nowhere in the notes of her
34
limited examination of Plaintiff is there mention of any
such problems (Tr. 385-86, 394-95).
Dr. Worthington’s opinion was also inconsistent with the
other opinions in the record (Tr. 53, 339-55).
Drs.
Lambrechts and Boukhemis, state agency physicians deemed
experts in evaluating disability claims, opined that
despite Plaintiff’s limitations, he could perform medium
work (Tr. 339-55).
Dr. Marshall also opined that
Plaintiff could perform medium work (Tr. 58).
Dr.
Marshall found that Plaintiff’s most recent MRI showed
“nothing of any significance” (Tr. 53).
Noting the
absence of any clinical finding showing Plaintiff had
problems seeing, hearing, reaching, or feeling, Dr.
Marshall testified that he believed Dr. Worthington’s
residual functional capacity assessment was “severely
exaggerated” (Tr. 57).
(Def.’s Br. at 8-10.)
In
evaluating
the
opinions
of
treating
sources,
the
Commissioner generally must give more weight to the opinion of a
treating physician because the physician is often most able to
provide “a detailed, longitudinal picture” of a claimant’s alleged
disability.
See 20 C.F.R. § 404.1527(d)(2) (2006).
Nevertheless,
a treating physician’s opinion is afforded “controlling weight only
if two conditions are met: (1) that it is supported by clinical and
laboratory
diagnostic
techniques
and
(2)
that
it
is
not
inconsistent with other substantial evidence.” Ward v. Chater, 924
F.
Supp.
53,
55
(W.D.
Va.
1996);
see
also,
20
C.F.R.
§
404.1527(d)(2) (2006). The opinion of a treating physician must be
weighed against the record as a whole when determining eligibility
for benefits.
20 C.F.R. §§ 404.1527(d)(2) (2000).
Ultimately, it
is the responsibility of the Commissioner, not the court to review
35
the case, make findings of fact, and resolve conflicts of evidence.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
As noted
above, however, the court must not abdicate its duty to scrutinize
the record as a whole to determine whether the Commissioner’s
conclusions are rational.
Oppenheim v. Finch, 495 F.2d 396, 397
(4th Cir. 1994).
If the ALJ determines that a treating physician’s opinion
should not be afforded controlling weight, the ALJ must then
analyze and weigh all the evidence of record, taking into account
the factors listed in 20 C.F.R. § 404.1527 (2006).
These factors
include: (1) length of the treatment relationship and frequency of
evaluation, (2) nature and extent of the treatment relationship,
(3) supportability, (4) consistency (5) specialization, and (6)
various other factors.
Additionally, the regulations state that
the Commissioner “will always give good reasons in our notice of
determination or decision for the weight we give your treating
source’s opinion.”
Id. § 404.1527(d)(2).
Under § 404.1527(d)(1), more weight is given to an examiner
than to a non-examiner.
Section 404.1527(d)(2) provides that more
weight will be given to treating sources than to examining sources
(and,
of
course,
than
to
non-examining
sources).
Section
404.1527(d)(2)(I) states that the longer a treating source treats
a claimant, the more weight the source’s opinion will be given.
Under § 404.1527(d)(2)(ii), the more knowledge a treating source
36
has about a claimant’s impairment, the more weight will be given to
the source’s opinion.
the
factors
of
Sections 404.1527(d)(3), (4), and (5) add
supportability
(the
more
evidence,
especially
medical signs and laboratory findings, in support of an opinion,
the more weight will be given), consistency (the more consistent an
opinion is with the evidence as a whole, the more weight will be
given), and specialization (more weight given to an opinion by a
specialist about issues in his/her area of specialty).
The
ALJ
wrote
a
substantial
decision
wherein
he
fully
considered the evidence of record, including that of treating
physician
Dr.
Worthington.
(Tr.
at
16-32.)
Regarding
Worthington’s opinions, the ALJ found:
The claimant testified to extreme symptoms and
limitations...He has been a patient at New River Clinic
for 18 years, and he has been seeing Dr. Worthington for
a year or so...
On June 18, 2008, Joan Worthington, D.O., the claimant’s
treating physician, opined the claimant is limited to
lifting no more than 10 to 15 pounds (Exhibit B-17F).
She opined the claimant can lift and carry 15 pounds
frequently.
She stated he can stand and/or walk two
hours total during an eight-hour workday, 45 minutes
without interruption. She stated he can sit one to two
hours total during an eight-hour workday, 20 minutes
without interruption.
She opined he can occasionally
kneel but can never climb, balance, stoop, crouch or
crawl. Dr. Worthington opined the claimant has limited
ability to reach, handle, feel, see and hear.
Dr.
Worthington further opined the claimant must avoid
heights and moving machinery (Exhibit B-19F).
The
opinions of Dr. Worthington are entitled to little weight
as they are not supported by the objective evidence of
record, including Dr. Worthington’s own treatment notes,
nor by the claimant’s daily activities.
37
Dr.
Robert Marshall, M.D., a medical expert, reviewed the
evidence of record and testified the claimant’s MRI
revealed bilateral spondylolysis but nothing significant.
The claimant’s spine has slight degenerative changes. He
complains of back pain and has been given medication.
Dr. Hultman dismissed the claimant from his practice due
to drug-seeking behavior. In April 2005, the claimant
had full range of motion and straight leg raising was 90
degrees bilaterally. In March 2004, Dr. Bhirud examined
the claimant, and the examination was essentially normal.
X-rays of the lumbar spine were normal. A CT scan of the
brain provided no objective findings. At one stage of a
brain MRI, there were little lesions, which can be caused
by something other than multiple sclerosis.
If not
multiple sclerosis, these lesions will cause no problems
as they are not in the areas of the brain involving motor
or sensory function. Occasionally, people with migraine
headaches get these tiny spots. Dr. Marshall testified
there is little to nothing clinically to support a
diagnosis of multiple sclerosis. The claimant has been
treated at New River Health Clinic for low back pain and
headaches. He is not longer prescribed narcotics nor
does he need any. In September 2008, the claimant was
diagnosed with low back strain or sprain. Dr. Marshall
opined the residual functional capacity by Dr.
Worthington is severely exaggerated as it is inconsistent
with the benign reports in the record.
Dr. Marshall
opined the claimant is limited to medium exertional
activity due to backache based on his treating source
diagnosis. Dr. Marshall opined there is no reason to
limit postural activities. The claimant’s optic nerves
are perfectly normal, and there is nothing to suggest a
neurological disorder. Migraine headaches are caused by
basal spasms. The lesions are not of any significance,
and they are not thought to be active.
Dr. Marshall
opined the claimant should get the follow-up MRI to be
certain. There is no measurement of scoliosis in the
record. The opinions of Dr. Marshall are entitled to
significant weight as they are supported by the objective
and credible evidence of record.
(Tr. at 24-25, 29.)
The undersigned has thoroughly reviewed all the records from
Dr. Worthington and finds that the ALJ correctly concluded that her
opinions were entitled to little weight.
38
As stated earlier, a
treating physician’s opinion is afforded “controlling weight only
if two conditions are met: (1) that it is supported by clinical and
laboratory
diagnostic
techniques
and
(2)
that
it
is
not
inconsistent with other substantial evidence.” Ward v. Chater, 924
F.
Supp.
53,
55
(W.D.
404.1527(d)(2) (2005).
Va.
1996);
see
also,
20
C.F.R.
§
Here, Dr. Worthington’s suggested total
disability due to “chronic low back pain” is not supported by the
objective evidence of record and is based on short term treatment
of less than four months.
(Tr. at 382-86, 389-92.)
20 C.F.R. § 404.1527(d)(2) requires the ALJ to “give good
reasons”
for
not
affording
controlling
weight
to
physician’s opinion in a disability determination.
a
treating
The “treating
source rule” requires the ALJ to give the opinion of a treating
source “controlling weight” if he/she finds the opinion “wellsupported
by
diagnostic
techniques”
substantial
evidence
404.1527(d)(2).
medically
acceptable
and
in
“not
[the]
clinical
inconsistent
case
record.”
and
laboratory
with
the
20
other
C.F.R.
§
If a treating source opinion is not afforded
controlling weight because it does not meet these criteria, the ALJ
must then determine what, if any, weight to give the opinion by
examining several regulatory factors (e.g., length of the treatment
relationship).
Id.
Here, the ALJ has provided “good reasons” for not giving
controlling
weight
to
Dr.
Worthington’s
39
statement
of
total
disability, i.e. her opinion is not supported by the objective
evidence of record and is based on short term treatment of less
than four months.
(Tr. at 29, 382-86, 389-92.)
In fact, on his
first office visit with Dr. Worthington on February 25, 2008, she
notes that Claimant is “[N]ot taking any meds at this time...In no
acute distress.” (Tr. at 386.) Then, at the apparent second office
visit with Dr. Worthington, on June 18, 2008, Claimant asks her to
fill out two physical exam forms for his applications for Social
Security benefits and she again notes that Claimant is “[I]n no
acute distress.”
(Tr. at 385.)
The court FINDS the ALJ properly evaluated the claim and
weighed the evidence of treating physician Dr. Worthington under 20
C.F.R.
§§
404.1512(e)
and
404.1527(d)(2)
and
the
applicable
regulations.
Fair Hearing
Claimant next argues that he was denied a fair hearing due to
the
conduct
hearing.
of
the
medical
expert
(Pl.'s Br. at 14-15.)
during
the
administrative
Specifically, Claimant argues:
Medical experts are employed by the Office of Disability
Adjudication and Review to provide impartial expert
opinions at the hearing level. HALLEX I-2-5-32. The
relative weight that the ALJ gives to a claimant’s
medical records versus expert witness testimony is within
the ALJ’s discretion. Chambliss v. Massanari, 269 F.3rd
520 (5th Cir. 2001).
However, it is the ALJ’s duty to elicit useful
objective testimony from the medical expert. HALLEX
5-39(A).
The Office of Disability Adjudication
Review has a policy that prohibits a medical expert
40
and
I-2and
from
unsupervised questioning of a Claimant or performing an
examination of a claimant. HALLEX I-2-5-36(A).
In the second copy of the audio recording of the
plaintiff’s September 25, 2008, hearing, received by the
plaintiff, the medical expert testified that the
claimant’s treating physician, Joan Worthington, D.O. had
submitted a report (Exhibit B-17F) that severely
exaggerated the plaintiff’s limitations in his ability to
do work-related activities. The medical expert went on
to say that the report was “dishonest” and asked the
claimant to stand and turn around so he could presumably
examine the plaintiff’s back which he is not permitted to
do so. He was stopped by the ALJ from continuing in this
impermissible conduct.
The ALJ later found in her decision that the opinion of
Dr. Worthington to be entitled to little weight and the
opinions of the medical expert were entitled to
significant weight.
The plaintiff believes that he is entitled to a hearing
free from the prejudicial effect of the statements and
the conduct of the medical expert at his hearing and
should be provided a new hearing with a different ALJ and
medical expert witness.
(Tr. at 14.)
The Commissioner responds that the ALJ’s decision is supported
by substantial evidence because the ALJ afforded Claimant a fair
hearing.
(Def.’s Br. at 8-11.)
Specifically, the Commissioner
asserts:
Plaintiff alleges that because of the testimony of
Medical Expert Dr. Marshall, he was not afforded a fair
hearing (Pl.'s Br. at 14).
Plaintiff, however, has
proffered no evidence suggesting that bias or prejudice
prevented the ALJ from properly adjudicating his case.
See 20 C.F.R. § 404.940 (explaining that an ALJ may not
conduct a hearing if he is “prejudiced or partial with
respect to any party or has any interest in the matter”).
Because the evidence shows that the ALJ afforded
Plaintiff a fair hearing and his decision is supported by
substantial evidence, Plaintiff’s right to due process
41
was not violated.
212, 216 (1971).
See Johnson v. Mississippi, 403 U.S.
In assessing a claim of bias, the court presumes “that
the hearing officer is unbiased.” Schweiker v. McClure,
456 U.S. 188, 195 (1982). This presumption is overcome
only if the plaintiff demonstrates that the ALJ
“displayed deep-seated and unequivocal antagonism that
would render fair judgment impossible.” Liteky v. United
States, 510 U. S. 540, 556 (1994).
The only evidence Plaintiff proffers to support his claim
that the ALJ was biased was the medical expert’s
testimony. But this testimony was not improper. Nothing
prohibits a medical expert from giving his opinion about
another physician’s assessment. Further, Dr. Marshall
never examined Plaintiff (Tr. 63). He stopped himself
from doing so before Plaintiff stood up, stating, “I’m
not allowed to examine him” (Tr. 63).
Dr. Marshall,
therefore, engaged in no impermissible conduct.
Plaintiff’s argument essentially asks this Court to
discredit the opinion of Dr. Marshall because it was not
in Plaintiff’s favor.
He has, however, failed to
overcome the presumption that the ALJ was an unbiased
decision maker. Because the ALJ’s decision was supported
by substantial evidence, this Court should affirm that
decision.
(Def.’s Br. at 10-11.)
The court has fully reviewed the hearing transcript from
September 25, 2008 and the ALJ’s decision of December 1, 2008. Tr.
at 16-32, 33-71.)
the
ALJ
are
The court finds that the conclusions drawn by
reasonable,
and
the
court
can
find
no
material
misstatement by the ALJ in her findings demonstrating a personal
bias against Claimant or that the testimony of the medical expert
Dr. Marshall, was mishandled by the ALJ in any way.
Claimant
admits
that
the
ALJ
advised
Dr.
Marshall
In fact,
of
the
inappropriateness of Dr. Marshall’s suggestion that he examine the
42
Claimant. (Pl.'s Br. at 14.)
Further, the transcript shows that
Dr. Marshall testified: “I’m not allowed to examine him.”
63.)
(Tr. at
At which time, the ALJ admonished him by stating: “Well, Dr.
Marshall you shouldn’t be.”
Id.
It is further noted that the ALJ
later stated to Dr. Marshall during his testimony: “Well, Dr.
Marshall, let’s be a little kinder than that.”
(Tr. at 67.)
The court finds that the ALJ properly weighed Claimant’s
subjective complaints of pain and properly assessed Claimant’s
credibility and the combination of his impairments, in keeping with
the applicable regulations, case law, and social security ruling
(“SSR”)
and
evidence.
that
her
findings
are
supported
by
substantial
20 C.F.R. § 404.1529(b) (2006); SSR 96-7p, 1996 WL
374186 (July 2, 1996); Craig v. Chater, 76 F.3d 585, 594 (4th Cir.
1996).
Claimant has failed to overcome the presumption that the ALJ
was
an
unbiased
decision
maker.
Further,
it
is
Claimant’s
responsibility to prove to the Commissioner that he or she is
disabled.
20 C.F.R. § 416.912(a) (2006).
Thus, Claimant is
responsible for providing medical evidence to the Commissioner
showing that he or she has an impairment.
Id. § 416.912(c).
Bowen v. Yuckert, the Supreme Court noted:
The severity regulation does not change the settled
allocation of burdens of proof in disability proceedings.
It is true . . . that the Secretary bears the burden of
proof at step five . . . [b]ut the Secretary is required
to bear this burden only if the sequential evaluation
process proceeds to the fifth step. The claimant first
43
In
must bear the burden . . . of showing that . . . he has
a medically severe impairment or combination of
impairments . . . . If the process ends at step two, the
burden of proof never shifts to the Secretary. . . . It
is not unreasonable to require the claimant, who is in a
better position to provide information about his own
medical condition, to do so.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Although the ALJ has a duty to fully and fairly develop the
record, he is not required to act as plaintiff’s counsel. Clark v.
Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994).
Claimant bears the
burden of establishing a prima facie entitlement to benefits.
See
Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); 42 U.S.C.A.
§ 423(d)(5)(A)(“An individual shall not be considered to be under
a disability unless he furnishes such medical and other evidence of
the existence thereof as the Commissioner of Social Security may
require.”) Similarly, Claimant “bears the risk of non-persuasion.”
Seacrist v. Weinberger, 538 F.2d 1054, 1056 (4th Cir. 1976).
The court FINDS the ALJ properly evaluated the claim and
weighed the medical evidence and provided Claimant with a fair
hearing.
The conduct of the medical expert at the hearing did not
have a prejudicial effect upon the ALJ’s review of the evidence.
After a careful consideration of the evidence of record, the
court finds that the Commissioner’s decision is supported by
substantial evidence.
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.
44
The Clerk of this court is directed to transmit copies of this
Order to all counsel of record.
ENTER: July 11, 2011
45
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