Taylor v. Astrue

Filing 22

MEMORANDUM AND OPINION 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 9/22/2011. (cc: attys) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
TERESA JEWEL TAYLOR,
Plaintiff,
v.

CASE NO. 2:10-cv-0881

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 applications for
disabled

widow's

insurance

benefits

(“DIB”)

and

supplemental

security income (“SSI”), under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-433, 1381-1383f.

Both parties have

consented in writing to a decision by the United States Magistrate
Judge.
Plaintiff, Teresa Jewel Taylor (hereinafter referred to as
“Claimant”), filed applications for disabled widow's insurance
benefits and SSI on May 30, 2006, alleging disability as of March
16, 2002, due to high blood pressure, high cholesterol, herniated
disc in neck, history of ulcers, nervous condition, depression, leg
pain and lower back pain.1

1

(Tr. at 10, 173-77, 179-83, 206-12,

Previously, Claimant protectively filed an application
for SSI on April 30, 2002, alleging disability beginning April 1,
2002. This claim was denied initially August 23, 2002, and upon

229-35, 239-44.)
reconsideration.
January

10,

The claims were denied initially and upon
(Tr. at 10, 97-101, 102-06, 112-14, 115-17.)

2007,

Claimant

requested

Administrative Law Judge (“ALJ”).

a

hearing

(Tr. at 123-25.)

before

On
an

The hearing

was held on June 20, 2007 before the Honorable Theodore Burock.2
(Tr. at 47-74, 130.)

A supplemental hearing was held on December

7, 2007 before the Honorable Theodore Burock. (Tr. at 22-46, 152.)
By decision dated May 30, 2008, the ALJ determined that Claimant
was not entitled to benefits.

(Tr. at 10-21.)

The ALJ’s decision

became the final decision of the Commissioner on May 3, 2010, when
the Appeals Council denied Claimant’s request for review.

(Tr. at

1-4.) On July 6, 2010, Claimant brought the present action seeking
judicial review of the administrative decision pursuant to 42
U.S.C. § 405(g).

reconsideration on January 17, 2003. Claimant filed a timely
written request for hearing on February 26, 2003, and an
unfavorable decision was issued July 18, 2003. Claimant filed a
request for review of the ALJ's decision on September 8, 2003.
The Appeals Council found there was no basis for review.
Claimant also protectively filed an application for SSI on August
11, 2003, alleging disability beginning April 1, 2002. The claim
was denied initially October 23, 2003, and upon reconsideration
February 11, 2004, and an unfavorable decision was issued March
23, 2006. Claimant filed a request for review of the ALJ's
decision on May 30, 2006. The Appeals Council found there was no
basis for review.
2

Although a vocational expert appeared, she did not
testify. (Tr. at 49.) The ALJ held the record open for the
claimant to undergo a consultative examination. (Tr. at 73.)
That examination report was received and admitted into evidence.
(Tr. at 456-74.)
2

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 impairment which can be expected to last for a
continuous period of not less than 12 months . . . ."

42 U.S.C. §

423(d)(1)(A).
The

Social

Security

Regulations

establish

a

"sequential

evaluation" for the adjudication of disability claims.
§§ 404.1520, 416.920 (2002).

20 C.F.R.

If an individual is found "not
Id. §§

disabled" at any step, further inquiry is unnecessary.
404.1520(a), 416.920(a).

The first inquiry under the sequence is

whether a claimant is currently engaged in substantial gainful
employment.

Id. §§ 404.1520(b), 416.920(b).

If the claimant is

not, the second inquiry is whether claimant suffers from a severe
impairment.

Id.

§§

404.1520(c),

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.
404.1520(d), 416.920(d).

If it does, the claimant is found

disabled and awarded benefits.
inquiry

is

whether

the

Id. §§

Id.

claimant's

If it does not, the fourth
impairments

prevent

the

performance of past relevant work. Id. §§ 404.1520(e), 416.920(e).

3

By satisfying inquiry four, the claimant establishes a prima facie
case of disability.
1981).

Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

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

education and prior work experience.

and

claimant's

age,

20 C.F.R. §§ 404.1520(f),

416.920(f) (2002). The Commissioner must show two things: (1) that
the

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

she

has

not

engaged

in

substantial gainful activity since the alleged onset date. (Tr. at
13.) Under the second inquiry, the ALJ found that Claimant suffers
from the severe impairments of cervical disc disease, depression,
anxiety and hypertension.

(Tr. at 13-14.)

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.
15.)

(Tr. at 14-

The ALJ then found that Claimant has a residual functional

capacity for medium work, reduced by nonexertional limitations.

4

(Tr. at 15-19.)

Claimant has no past relevant work.

(Tr. at 19.)

Nevertheless, the ALJ concluded that Claimant could perform jobs
such as small parts assembler and price marker which exist in
significant numbers in the national economy. (Tr. at 20.) On this
basis, benefits were denied.

(Tr. at 20-21.)

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.

Celebrezze,

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
5

Commissioner is supported by substantial evidence.
Claimant’s Background
Claimant was fifty years old at the time of the administrative
hearing.
56.)

(Tr. at 55.)

She has a tenth grade education.

(Tr. at

In the past, she worked briefly as a housekeeper for a family

member.

(Tr. at 56, 312.)

The Medical Record
The court has reviewed all evidence of record, including the
medical evidence of record, and will summarize it below.
Physical Evidence
Records indicate Claimant was treated by Shahrooz Jamie, M.D.
on 127 occasions from April 10, 2002 through November 19, 2007.
(Tr. at 346-94, 442-44, 449-52, 475-80, 482.)

The handwritten

notes are almost completely illegible, save for numerical dates and
an occasional decipherable word.

Id.

Decipherable words are:

“arthritis...abdominal pain...hurting in lower neck...herniated
disc...acute sinusitis...herpes zoster... anxiety...pulled muscles
in

lower

back...depression...bronchitis...hypertension...

hyperlipidemia...arthralgias...menopause syndrome...restless leg
syndrome.” (Tr. at 346, 349-51, 352-53, 356, 357, 360, 365-369,
384, 388-91, 442-44, 450-51, 475-78, 482.)
On October 23, 2002, Constantino Y. Amores, M.D., Neurological
Associates, Inc., provided a consultative examination of Claimant
at the request of Dr. Shahrooz Jamie.

6

(Tr. at 273-78.)

Dr. Amores

concluded:
The patient’s chief complaint was neck pain.
The
neurological examinations shows no neurological deficit.
A MRI dated 04/14/02 from KVR was available for review.
On a scale of 1-10, (10 being worst) today is
characterized as 9.
Diagnosis: Cervical Spondylosis (ICD-721.0).
Co-Morbidities: 1. Chronic Cervical Strain 2. Depression
3. Hypertension 4. Gastric Ulcer.
RECOMMENDATION: Considering the history, the general and
more specifically the neurological examinations and tests
available for review, I feel that conservative, nonsurgical treatment would be the better option.
This
should include initial drastic reduction in activity to
minimize aggravating the problem. If the patient can
take anti-inflammatory agents, they have proven to be
beneficial.
Sometimes muscle relaxants, a short-term
course of stronger pain medications, heat or ice packs
can be added to the regimen. Physical support, such as
a brace, provides comfort and hastens improvement in many
cases. As soon as tolerated an active physical therapy
program for strengthening exercises could be helpful. If
pain is intractable and overwhelming, a consultation at
a multi-disciplinary comprehensive pain program to tap on
their expertise on pain medications and pain procedures.
Social-economic concerns and nonorganic medical syndromes
must be resolved before any meaningful relief is
expected.
A change in lifestyle may be in order to
adjust to the physical limitations.
(Tr. at 273.)
On April 14, 2002, Thomas J. Zekan, M.D., Kanawha Valley
Radiologists, Inc., reviewed a MRI of Claimant’s cervical spine,
wherein

he

concluded:

“Routine

unenhanced

performed...IMPRESSION: Degenerative changes.

examination

was

Small focal disc

herniation on the right at C5-6 with narrowing of the canal
somewhat and right neural foramen somewhat.
7

Clinical correlation

is necessary.”

(Tr. at 454-55.)

On August 9, 2006, Samuel Davis, M.D., radiologist, Montgomery
General Hospital, reviewed x-rays of Claimant’s cervical spine, per
the order of Dr. Shahrooz Jamie.

(Tr. at 398, 453.)

Dr. Davis

concluded:
Complete Cervical Spine:
Hypertrophic degenerative changes are noted adjacent to
narrowed C5-6 intervertebral disc space. The cervical
vertebral bodies are intact. The odontoid is intact.
The dorsal processes and lateral masses are intact. The
curvature and alignment of the cervical spine is normal.
C5-6 intervertebral disc space is narrowed.
The
remaining cervical intervertebral disc spaces are
maintained. Degenerative impingement is noted in the C56 neural foramina bilaterally.
The remaining neural
foramina are maintained. Prevertebral soft tissues are
normal in appearance.
Soft tissue calcifications is
noted in the posterior soft tissues of the neck adjacent
to the posterior aspect of the C-4 and C-5 dorsal
processes.
IMPRESSION: Arthritic
discussed above.

and

degenerative

changes,

as

Follow-up study is suggested, as clinically warranted.
Id.
On

August

16,

2006,

Abdul

M.

Mirza,

M.D.,

provided

a

Disability Determination Examination of Claimant for the West
Virginia Disability Determination Service.

(Tr. at 330-35.)

Mirza concluded:
HABIT HISTORY: She smokes one pack of cigarettes a day
for 30 years, and she is still smoking.
She denied
drinking.
She says she has never been a heavy
drinker...
PHYSICAL EXAMINATION: GENERAL: The patient is a 50-year8

Dr.

old who looks younger than her age, and very cheerful,
nice lady in no distress. Her color is good.
VITAL SIGNS: Blood pressure 130/70, weight 139 pounds,
height 64 inches...
NEUROLOGIC: Cranial nerves intact. Deep tendon reflexes
hyperactive. Babinski absent. Muscle strength is good
and equal on both sides.
IMPRESSIONS: The patient is a 50-year-old and has no
skills to do any gainful work. Since her husband died
four years ago, she has no source of income, and she
cannot do any housework right now for somebody else, as
she did six years ago, because of her pain in the neck,
pain in the back, and pain in the legs. So right now,
she is destitute.
She has a history of herniated disk in the neck, and no
surgery was recommended. This happened after she had an
auto accident...She has pain in the back and neck. She
has a history of hypertension. She has a history of
peptic ulcer and is under treatment for it. She has a
history of depression and panic attacks since her
husband died in 2002.
(Tr. at 332-33.)
On September 5, 2006, a State agency medical source completed
a Physical Residual Functional Capacity Assessment and opined that
Claimant

could

perform

medium

work

with

only

four

postural,

manipulative, visual, communicative, or environmental limitations that she could only occasionally climb ladder/rope/scaffolds and
crawl and should avoid concentrated exposure to vibration and
hazards.

(Tr. at 339-40.)

The evaluator, A. Rafael Gomez, M.D.

noted:
Claimant is not fully credible. She has neck pain and
multiple arthralgias with decrease in ROM’s of cervical
spine. There is no documentation she has a herniated
disc as alleged. The neurological findings are intact.
9

Has h/o [history of] HTN [hypertension] under good
control.
Has diagnosis of gastric ulcer.
The
neurological findings are intact.
She is reduced to
medium work.
(Tr. at 341.)
On

November

2,

2006,

Samuel

Davis,

M.D.,

radiologist,

Montgomery General Hospital, reviewed x-rays of Claimant’s right
tibia, fibula, and lumbar spine per the request of Dr. Jamie. (Tr.
at 395-96.)

Dr. Davis’ impressions were:

Right Tibia and Fibula:
The distal femur and patella are intact as visualized.
The knee joint space is maintained. The tibia and fibia
appear intact throughout their extent. The ankle mortise
is maintained.
IMPRESSION: Negative right tibia and fibula.
(Tr. at 395.)
Complete Lumbosacral Spine:
The lumbar vertebral bodies are intact.
The lumbar
intervertebral disc spaces are maintained. The curvature
and alignment of the lumbar spine is normal.
No
spondylolysis or spondylolisthesis is seen.
The
sacroiliac joints are intact bilaterally.
Vascular
calcification is noted.
IMPRESSION: Degenerative changes. Otherwise, essentially
negative lumbar spine.
(Tr. at 396.)
On December 9, 2006, a State agency medical source completed
a Physical Residual Functional Capacity Assessment and opined that
Claimant could perform medium work with no postural, manipulative,
visual, or communicative limitations.

10

(Tr. at 413-17.)

The only

limitations were that Claimant should avoid concentrated exposure
to extreme cold and vibration due to “pain”.

(Tr. at 417.)

The

evaluator, James Egnor, M.D. noted:
The chart and RFC [residual functional capacity] were
reviewed. The MER [medical evidence of record] is well
documented in the abstract above.
PPQ: She notes
constant pain in neck, arms, back and leg; takes
hydrocodone as needed; no pain clinic or spinal
injections.
ADL’s: Lives alone, independent with self care, pet care,
cooks, cleans, laundry, goes outside daily, drives or
rides, shops, handles money, watches TV 6-8 hours daily,
talks on phone, visits, church; most activity limited,
can walk 1000 feet the [sic] rest one hour.
The complaints are judged to be only partially credible
and the RFC is reduced to do only medium work with some
environmental limitations. This reflects the effects of
the symptoms on the ADL’s and work activity.
(Tr. at 420.)
On March 14, 2007, Claimant had a bone density testing
conducted at Montgomery General Hospital per the request of Dr.
Jamie.

(Tr. at 435, 445-46.)

The bone densitometry report

indicated a “medium risk” for osteopenia.” Id.
On July 31, 2007, Eli Rubenstein, M.D., reviewed Claimant’s
cervical spine x-ray and found: “Cervical Spine 2V.
process is normal.
spine.

There is normal alignment of the cervical

There is slight narrowing of C-5 C-6.

interspaces appear normal.
6.”

The odontoid

The rest of the

IMPRESSION: Slight narrowing of C-5 C-

(Tr. at 471.)
On July 31, 2007, Kip Beard, M.D. completed a form titled

11

“Medical Source Statement of Ability to Do Work-Related Activities
(Physical)”. (Tr. at 464-69.) Dr. Beard opined that Claimant could
not lift and carry more than 50 pounds but could lift and carry 21
to 50 pounds occasionally, 11 to 20 pounds frequently, and up to 10
pounds continuously.

(Tr. at 464.)

Claimant could sit for 4

hours, stand for 2 hours, and walk for 2 hours at one time without
interruption; and sit for 6 hours, stand for 6 hours, and walk for
6 hours total in an 8 hour workday.

(Tr. at 465.)

Claimant could

continuously use both hands for handling, fingering and feeling,
and occasionally for reaching, and pushing/pulling. (Tr. at 466.)
Claimant could frequently use both feet for the operation of foot
controls.

Id. Regarding postural activities, Claimant could not

climb ladders or scaffolds but could occasionally crouch and crawl,
frequently climb stairs, stoop and kneel, and continuously balance.
(Tr. at 467.) Claimant could occasionally or frequently tolerate
all environmental limitations.

(Tr. at 468.)

Dr. Beard concluded

that Claimant could perform all the listed work-related activities.
(Tr. at 469.)
On August 5, 2007, Dr. Beard also provided a report of his
July 31, 2007 Internal Medicine Examination of Claimant for the
West Virginia Disability Determination Service.

(Tr. at 458-63.)

Dr. Beard concluded:
IMPRESSION:
1.
Chronic cervical strain with bilateral radicular
symptoms.
2.
Cervical MRI evidence of C5-6 disk herniation with
12

3.
4.
5.
6.

central canal and right foraminal stenosis.
Low back pain.
Hypertension.
Possible chronic bronchitis with chronic tobacco
history [1 to 2 packs per day].
History of gastric ulcers with chronic dyspepsia.

SUMMARY:
The following contains information that was
applied to the Medical Assessment Form. In regards to
the neck, the claimant has had trouble with her neck
since a car wreck in 2000. There is an MRI on the chart
that notes a disk herniation at C5-6 with some degree of
central canal and right neuroforaminal stenosis. X-rays
performed today show some mild spondylitic changes and
narrowing most pronounced at C5-6. Examination of the
neck revealed complaints of some mild pain with muscular
tenderness with some mild range of motion loss. Reflexes
in the upper extremities appeared symmetric. There was
no weakness, atrophy, or sensory loss to suggest cervical
radiculopathy, and there were no findings of myelopathy.
The claimant’s gait appeared normal, and she did not
present with or require ambulatory aids.
Regarding the complaint of lower back pain, examination
revealed some mild discomfort on motion testing with
preserved motion and no evidence of nerve root
impingement.
The claimant had some limited shoulder
range of motion associated with complaints of neck pain.
Regarding hypertension, I did not appreciate end-organ
damage associated with this.
Regarding the issue of stomach ulcers, this is reflected
within the medical records.
The claimant has had no
known history of bleeding ulcers and has required no
surgery or transfusions.
Abdominal examination was
unremarkable.
Regarding respiratory function, the claimant does have a
chronic smoking history and has symptoms suggestive of
chronic bronchitis or perhaps asthmatic bronchitis.
Pulmonary spirometry performed today [Tr. at 472-74] was
interpreted as normal.
(Tr. at 462-63.)

13

Psychiatric Evidence
On January 14, 2003, Ted Thornton, M.D., Highland Behavior
Health, Clay County, provided an intake Comprehensive Psychiatric
Evaluation of Claimant upon referral by her representative.
at 305-07.)

Dr. Thornton concluded:

PAST PSYCHIATRIC HISTORY: Has never been hospitalized.
Has never been treated except for this Valium, 5 mg, at
bedtime by Dr. Jamie...
MENTAL STATUS EXAM: The patient presents on time for her
interview. She is clean, well-groomed, and appropriately
dressed. She relates well, though is tearful and quite
depressed during the interview...Denies suicidal or
homicidal ideation. Stream of thought, as evidenced by
speech, was relevant and coherent without evidence of
pathology.
Thought content without hallucinations,
delusions, illusions, or other pathology.
Intellectual functioning: The patient is awake and alert
without change in sensorium during our interview. She is
oriented x 4.
Memory appears intact, recently and
remotely. Immediate recall reveals 3/3 objects recalled
immediately, 2/3 after five minutes without clues, and
3/3 after five minutes with clues. General information,
calculations, abstractabilities, and similarities done
well.
Concentration, as measured by the digit test,
revealed 5 forward and 3 backward obtained.
DIAGNOSIS:
Axis I:
Major Depression, recurrent, 296.32.
Features of Generalized Anxiety Disorder.
Features of Panic Disorder.
II: V71.09
III. Hypertension and history of ulcers.
IV. 01, 02, 03, and 06
V.
Current GAF: about a 50
PLAN: Discussed with her in detail possible treatment
options. Agreed that she could continue on the Valium if
she felt like it was helpful and that was between her and
Dr. Jamie. I also told her to continue therapy which she
declines at this point. We did agree to begin Lexapro,
10 mg, one each morning to help with mood stability.
14

(Tr.

...Will see me back in four weeks.
(Tr. at 306-07.)
Records

indicate

Claimant

continued

to

receive

“Pharmacological Management” from Ted Thornton, M.D., at Highland
Behavioral Health, Clay County, on thirteen occasions from February
11, 2003 to June 14, 2005.

(Tr. at 279-304.)

On February 11,

2003, Dr. Thornton stated: “Notes doing poorly.

Severe heartburn

and nausea [illegible]...Prozac - zombied.
complaint] depression but looks better.”
11,

2003,

Dr.

Thornton

wrote:

Still c/c [chief

(Tr. at 303.)

“Notes

doing

well

On March
with

Rx

[prescription]. Sleep better. Mood ‘pretty good’.” (Tr. at 299.)
On June 3, 2003, Dr. Thornton concluded: “Notes doing better.
Sleep 7 hrs.

Mood [illegible]...better than before.”

(Tr. at

301.)

On July 1, 2003, Dr. Thornton stated: “Notes doing fairly

well.

Herniated disk in neck bothers sleep.”

(Tr. at 297.) On

October 7, 2003, Dr. Thornton states: “Notes doing pretty well with
med, sleep improved most nights.
at 295.)

Mood improved most days.”

(Tr.

On October 18, 2003, Dr. Thornton’s notes are illegible

save for the words “fairly well.”

(Tr. at 293.) On December 16,

2003, Dr. Thornton stated: “Notes doing well with Rx.

Mood and

sleep improved.” (Tr. at 291.) On February 17, 2004, Dr. Thornton
noted “Doing well with Rx.

Mood good.

Sleep OK.”

(Tr. at 289.)

On July 6, 2004, Dr. Thornton wrote: “Notes doing well back on
Remeron [illegible].”

(Tr. at 287.)

15

On October 5, 2004, Dr.

Thornton wrote: “Doing OK.
all better [illegible].”

Mood pretty good.
(Tr. at 285.)

Sleep varies.

Legs

On January 11, 2005, Dr.

Thornton stated: “Pt [patient] into office c/o [complains of]
oversedated

and

[illegible].”

hungover

in

(Tr. at 283.)

“Doing well with Rx.

AM...crying

spells

and

dysphoria

On May 22, 2005, Dr. Thornton notes:

Not a zombie on [illegible].” (Tr. at 281.)

The notes dated June 14, 2005 indicate: “Notes doing well.
and mood better.”

Sleep

(Tr. at 279.)

On August 6, 2006, a State agency medical source completed an
Adult Mental Profile of Claimant which included a mental status
Examination.

(Tr. at 310-15.)

The evaluator, Lester Sargent,

M.A., Licensed Psychologist, found:
MENTAL STATUS EXAMINATION: The following observations
were made during the evaluation:
Appearance: The claimant appeared for the interview
casually dressed and with proper hygiene. She was well
groomed and appeared her stated age of 50 years.
Attitude/Behavior:
The
claimant
was
cooperative
throughout the evaluation.
Eye contact was fair.
Speech: Speech was coherent and logically connected.
Orientation: She was oriented to time, place, person, and
date.
Mood: Observed mood was remarkable for mild
sadness and anxiety.
Affect: Affect was mildly
restricted. Thought Processes: Thought processes were
understandable and connected. Thought Content: There was
no evidence of delusions, paranoia, obsessive thoughts,
or compulsive behaviors.
Perceptual: There was no
evidence of unusual perceptual experiences. Judgment:
Judgment was within normal limits, based on responses to
Comprehensive subtest questions. Insight: Insight was
fair, based on responses to questions regarding social
awareness. Psychomotor Activity: There was no evidence
of psychomotor agitation or retardation, other than mild
restlessness. Suicidal/Homicidal Ideation: The claimant
denied suicidal and homicidal ideations.
Immediate
16

Memory: Immediate memory was within normal limits, based
on her ability to instantly recall four of four words.
Recent Memory: Recent memory was severely deficient, as
she was unable to recall any of four words after a 30minute delay. When given the choice of two wrong answers
and the correct answer she identified two of four words.
Remote Memory: Remote memory was normal, based on her
ability to recall details of her personal history.
Concentration: Concentration was mildly deficient, based
on Digit Span subtest scaled score of 6. Persistence:
Persistence was normal, based on observations made during
the evaluation. Pace: The pace was normal, as evidenced
during the evaluation.
SOCIAL FUNCTIONING: During the Evaluation: Social
functioning during the evaluation was within normal
limits, based on clinical observations of social
interactions with the examiner and others (i.e. eye
contact, sense of humor, and mannerisms).
DIAGNOSES: Based on review of available records and
impressions made during the evaluation, the following
diagnoses are appropriate.
Axis I

300.00

Axis II
Axis III

V71.09

Anxiety Disorder, Not Otherwise
Specified
[NOS](mixed
anxietydepression disorder)
No diagnosis
Neck pain, headaches, lower back
pain, bilateral lower extremity
pain,
hypertension,
high
cholesterol, and bacterial ulcers
(Per claimant)

RATIONALE: The Axis I diagnosis of Anxiety Disorder, Not
Otherwise Specified (mixed anxiety-depression disorder)
is based on the claimant’s account of recurrent dysphoric
mood lasting at least one month associated with
difficulty concentrating, remembering things, sleep
disturbance, fatigue, irritability, worry, being easily
moved to tears, pessimism about the future, and low selfesteem.
SOCIAL FUNCTIONING: Self-Reported: The claimant goes to
the store, post office, and runs errands on an as-needed
basis.
She frequently sees her children and two
grandchildren. She walks for exercise. Her hobbies are
watching TV and listening to gospel music. She keeps
17

medical appointments. She eats out whenever she has an
appointment. She reported no close friends. She does
not maintain a checking account.
She receives food
stamps and relies upon family members for financial
assistance.
DAILY ACTIVITIES: The claimant arises around 8 a.m. She
is able to perform all basic living duties without
assistance.
She performs activities of daily living
including housework, cooking, laundry, dishes, sweeping,
etc. She is able to work up to 15 minutes at a time
before having to take a break due to pain. She reported
her daughter helps out with household chores. Her daily
routine begins by smoking a cigarette, drinking a cup of
coffee, and watching TV. She walks to the mailbox. She
performs household chores throughout the day, watches TV,
and eats dinner around 4 p.m.
She walks to her
daughter’s house in the afternoon. At night, she watches
TV until she falls asleep around 2 a.m.
PROGNOSIS: Fair.
CAPABILITY: The claimant appears capable of managing her
funds should an award be made.
(Tr. at 312-13.)
On August 14, 2006, a State agency medical source completed a
Psychiatric

Review

Technique

form.

(Tr.

at

316-29.)

The

evaluator, Timothy Saar, Ph.D., found Claimant’s impairment was not
severe regarding her affective disorder, anxiety, NOS.
316,

321.)

He

found

Claimant

had

a

no

limitation

(Tr. at
regarding

restriction of activities of daily living and difficulties in
maintaining social functioning; mild degree of limitation regarding
difficulties in maintaining concentration, persistence, or pace;
and no episodes of decompensation.

(Tr. at 326.)

He stated that

the evidence does not establish the presence of “C” criteria. (Tr.
at 327.)

Dr. Saar concluded:
18

ADL’s [activities of daily living] per ce: able to
perform all basic living duties without assistance,
including housework, cooking, laundry, dishes, sweeping.
Her daughter helps with household chores.
Walks to
mailbox. Watch tv.
ADL’s per form: lives alone in doublewide, feeds and
waters dogs, no problems with personal care, prepares
meals, small loads of laundry, pick up things, drives,
shops, can handle money, watch tv, talk to sister on
phone. Problems with memory, concentration, completing
tasks, understanding and getting along with others.
ANALYSIS: Clmt [claimant] appears credible.
Clmt can
manage basic ADLS and social interactions. Mild limits
in C/P/P [concentration, persistence, pace], but the
evidence does not support severe limitations in F.C.
[functional capacity] due to mental impairment.
DECISION - IMPAIRMENT NOT SEVERE
(Tr. at 328.)
On December 14, 2006, a State agency medical source completed
a Psychiatric Review Technique form.

(Tr. at 421-34.)

The

evaluator, Debra Lilly, Ph.D., found Claimant’s impairment was not
severe regarding her anxiety disorder.
found

Claimant

had

mild

limitation

(Tr. at 421, 426.) She
regarding

restriction

of

activities of daily living, difficulties in maintaining social
functioning,

and

difficulties

in

maintaining

concentration,

persistence, or pace; and no episodes of decompensation.
431.)

(Tr. at

He stated that the evidence does not establish the presence

of “C” criteria.

(Tr. at 432.)

Dr. Lilly concluded:

Appeals
–
alleges
increase
in
mental
health
symptoms...treating source notes make no mention of this.
Claimant alleges variety of symptoms and limitations.
The evidence does not support that she makes these to her
treating source or that she has functional limitations
19

that are consistent with these deficits.
She is not
considered credible with regard to the severity of her
mental health symptoms.
(Tr. at 433.)
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
properly weigh the opinions of Claimant’s treating physicians which
demonstrated

she

was

disabled

under

Listing

of

Impairments,

§1.04(A), and erred in concluding her credibility was not fully
credible, and (2) the ALJ ignored the opinions of Claimant’s
treating psychiatrist.

(Pl.'s Br. at 7-14.)

The Commissioner responds that substantial evidence supports
(1) the ALJ’s treatment of the medical records of Claimant’s
treating physicians and Claimant’s credibility and (2) the ALJ’s
treatment of the medical records of Claimant’s psychiatrist.
(Def.’s Br. at 11-20.)
Listing of Impairments, Medical Source Opinions, Credibility
Claimant first argues that the ALJ failed to properly weigh
the opinions of her treating physicians, Thomas J. Zekan, M.D. and
Shahrooz Jamie, M.D.3, which demonstrated she was disabled under
Listing of Impairments, §1.04(A), and erred in concluding that she

3

Claimant and the Commissioner refer to Claimant’s
physician incorrectly as “Dr. Sharooz, M.D.” in their briefs.
(Pl.'s Br. at 4; Def.’s Br. at 11.) The ALJ referred to him as
“Dr. Sharooz Jamie.” (Tr. at 13.) His correct name is “Shahrooz
Saheb Jamie, M.D.” (Tr. at 441.)
20

was not fully credible.

(Pl.'s Br. at 7-12.)

Specifically,

Claimant asserts:
It is clear, based on objective MRI and X-Ray evidence,
that Ms. Taylor is disabled under Listing of Impairments,
§1.04(A)... Despite meeting and/or equaling, this
listing, the ALJ committed reversible error by failing to
properly evaluate the medical evidence and the opinions
of her treating physicians...
The
the
MRI
was

radiological evidence in this case fits squarely into
framework of Listing 1.04(A). On April 4, 2002, an
examination of the plaintiff’s cervical spine that
performed by Dr. Thomas J. Zekan, M.D. (R. 412)....

Further, there is clinical documentation from the
plaintiff’s treating physician, Dr. Sharooz, M.D., that
Ms. Taylor suffers from chronic radiculopathy and
neurological pain in her neck which radiated into both
her shoulders, her left arm, left hand and back.
In
fact, she was treated for a myriad of neurological
symptoms caused by the referenced cervical herniation on
thirty-two (32) visits to Dr. Sharooz’s office between
April 10, 2002 and March 14, 2007. (R. 346-412.)...
At the hearing, the Plaintiff testified entirely
consistently with the objective radiological evidence and
the clinical findings of her doctors...
Despite the fact that the plaintiff’s testimony was
completely consistent with the clinical findings in this
case, the ALJ found that the “claimant’s statement
concerning the intensity, persistence and limiting
effects of these symptoms are not fully credible” and
that the “degree of treatment as described in this
decision does not provide a basis” for the complaints of
pain that the claimant made at the hearing. Given the
record, as provided herein, it is an inescapable
conclusion that the ALJ entirely ignored the objective
MRI findings, her treating physician’s observations and
her own testimony regarding her diagnosis, pain and
subsequent treatment received by the plaintiff.
The ALJ also failed to recognize that a treating
physician’s opinion is entitled to controlling weight
where it is well supported by medically accepted clinical
and laboratory diagnostic techniques and not inconsistent
21

with the other substantial evidence in the case record.
(Pl.'s Br. at 7-11.)
The Commissioner responds that substantial evidence supports
the ALJ’s treatment of the medical records of Claimant’s treating
physicians, Dr. Zekan and Dr. Shahrooz Jamie.
17.)

(Def.’s Br. at 11-

Specifically, the Commissioner argues:
First, Plaintiff wrongly asserts that Dr. Zekan and Dr.
Sharooz provided medical opinions that the ALJ was
capable of weighing. To the contrary, neither Dr. Zekan
nor Dr. Sharooz offered any assessment of Plaintiff’s
limitations that would necessitate that the ALJ accord
weight to their medical statements. Nevertheless, the
ALJ’s decision reflects that he both discussed and
adopted the diagnostic findings of these two physicians
(Tr. at 13-14)...
Second, and as the ALJ noted, the objective evidence of
record did not support a finding of disability (Tr. at
8)...Interesting, Plaintiff argues that her treating
physician opinions should be given controlling weight
without identifying any opinion evidence that the
treating physicians’ offered (Pl.'s Br. at 7-11)...
Third, as the ALJ properly concluded, Plaintiff’s
conservative treatment and success with medication, is
not consistent with the treatment of someone suffering
from a disabling impairment (Tr. 19)...
Fourth...the ALJ also correctly noted that Dr. Sharooz
did not provide any clinical or objective findings to
support his opinion (Tr. 52-53). To the contrary, Dr.
Sharooz’s treatment notes generally reflected that
Plaintiff was “doing well” (Tr. 285-299)...
Fifth, contrary to Plaintiff’s claims, her activities of
daily living do not support a disability finding...
Sixth, Plaintiff erroneously asserts, as part of her
treating physician argument, that Plaintiff met or
equaled a Listing (Pl.'s Br. at 7-8).
The Listings
describe impairments considered severe enough to prevent
a person from engaging in any gainful activity...Meeting
22

or equaling the Listings cannot be based simply on a
claimant’s testimony or speculation...
Seventh, the ALJ properly relied upon the opinions of the
state agency physicians, Drs. Gomez and Egnor.
The
opinions rendered by state agency physicians on an
individual’s residual functional capacity are entitled
to weight because state agency medical consultants are
“highly qualified” physicians and “experts in the
evaluation of the medical issues in disability claims
under the Act.”
See 20 C.F.R. §§ 404.1527(f),
416.927(f); Social Security Ruling (SSR) 96-6p.
(Def.’s Br. at 11-16.)
“The Listing of Impairments describes, for each of the major
body systems, impairments that are considered severe enough to
prevent an adult from doing any gainful activity,” see 20 C.F.R. §§
404.1525(a) and 416.925(a) (2010), regardless of age, education or
work experience, see Sullivan v. Zebley, 493 U.S. 521, 532 (1990).
“For a claimant to qualify for benefits by showing that his
unlisted impairment, or combination of impairments, is ‘equivalent’
to a listed impairment, he must present medical findings equal in
severity to all the criteria for the one most similar listed
impairment.”

See id. at 531.

In an extensive twelve-page decision, the ALJ considered the
entire

record

and

made

these

findings

regarding

Claimant’s

impairments, including Claimant’s mental status:
The claimant’s cervical disc disease is evaluated under
Section 1.04 (musculoskeletal system) of the listings.
However, there is no evidence resulting in compromise of
a nerve root or the spinal cord. There is no evidence of
limitation of the spine, motor loss accompanied by
sensory or reflex loss, and if there is involvement of
the lower back, positive straight-leg raising test
23

(sitting and supine).
The claimant’s hypertension is evaluated under Section
4.00 of the listings. However, there is no evidence of
any effects on other body systems (heart, brain, kidneys,
or eyes) when considered effects under the listings.
The claimant’s mental impairments do not meet or
medically equal the criteria of listings 12.06 and 12.09.
In making this finding, the undersigned has considered
whether the “paragraph B” criteria are satisfied. To
satisfy the “paragraph B” criteria, the mental impairment
must result in at least two of the following: marked
restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence,
or pace; or repeated episodes of decompensation, each of
extended duration. A marked limitation means more than
moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three
episodes within 1 year, or an average of once every 4
months, each lasting for at least 2 weeks.
In activities of daily living, the claimant had mild
restriction. She walks for exercise. She was able to
perform all the basic living duties without assistance.
She did the housework, cooking, laundry, dishes,
sweeping, etc. She takes car of her dogs.
In
social
functioning,
the
claimant
has
mild
difficulties.
She frequently sees her children and
grandchildren. She goes to the store, post office, and
runs errands on an as needed basis. She eats out when
she has a doctor’s appointment. She talks to her sister
on the telephone. She goes to church one or two times a
month (Exhibit 3E).
With regard to concentration, persistence or pace, the
claimant has moderate difficulties.
She watches
television and listens to gospel music. She reported
that she could take care of paying bills and handling her
checkbook (Exhibit 3E).
As for episodes of decompensation, the claimant has
experienced no episodes of decompensation.
Because the claimant’s mental impairment does not cause
at least two “marked” limitations or one “marked”
24

limitation and “repeated” episodes of decompensation, the
“paragraph B” criteria are not satisfied.
The
undersigned has also considered whether the “paragraph C”
criteria are satisfied. In this case, the evidence fails
to establish the presence of the “paragraph C” criteria.
(Tr. at 14-15.)
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.
(2010).

See 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2)

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) and 416.927(d)(2) (2010).
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) and 416.927(d)(2) (2010).

Ultimately,

it is the responsibility of the Commissioner, not the court to
review 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

Commissioner’s conclusions are rational.

25

determine

whether

the

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 and 416.927(d)(2)-(6).
These factors include: (1) Length of the treatment relationship and
frequency of evaluation, (2) Nature and extent of the treatment
relationship,

(3)

Supportability,

(4)

Specialization, and (6) various other factors.

Consistency,

(5)

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),

416.927(d)(2).
Under §§ 404.1527(d)(1) and 416.927(d)(1), more weight is
given

to

an

examiner

than

to

a

non-examiner.

Sections

404.1527(d)(2) and 416.927(d)(2) provide that more weight will be
given to treating sources than to examining sources (and, of
course, than to non-examining sources). Sections 404.1527(d)(2)(i)
and 416.927(d)(2)(I) state 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)

and

416.927(d)(2)(ii),

the

more

knowledge a treating source has about a claimant’s impairment, the
more weight will be given to the source’s opinion.

Sections

404.1527(d)(3), (4) and (5) and 416.927(d)(3), (4), and (5) add the

26

factors of 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 Fourth Circuit
Court of Appeals has held that "a non-examining physician's opinion
cannot by itself, serve as substantial evidence supporting a denial
of disability benefits when it is contradicted by all of the other
evidence in the record."

Martin v. Secretary of Health, Education

and Welfare, 492 F.2d 905, 908 (4th Cir. 1974); Hayes v. Gardener,
376 F.2d 517, 520-21 (4th Cir. 1967).

Thus, the opinion "of a non-

examining physician can be relied upon when it is consistent with
the record."

Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir.

1986).
Regarding the medical evidence, particularly the reports of
Dr. Shahrooz Jamie and the MRI report of Dr. Zekan, the ALJ made
these findings:
On October 20, 2002, the claimant was seen by Dr.
Constantine Amores for a neurological examination and
diagnosed with cervical spondylosis. Dr. Amores noted
that she also had chronic cervical strain (Exhibit 1F)...
The evidence contains medical records covering the period
April 10, 2002, through November 2, 2006, from Dr.
Sharooz Jamie, the claimant’s treating physician. An MRI
of the cervical spine dated April 14, 2002 [Thomas J.
Zekan, M.D.], showed degenerative changes; small focal
disc herniation on the right at C5-6 with narrowing of
the canal and right neural foramen (Exhibit 9F/67). An
27

x-ray dated August 9, 2006, showed hypertrophic
degenerative
changes
adjacent
to
narrowed
C5-6
intervertebral disc space. Degenerative impingement was
noted in the C5-6 neural foramina bilaterally (Exhibit
9F/53).
Subsequent to the hearing, the claimant underwent a
consultative internal medicine examination on July 31,
2007, by Kip Beard, M.D. The claimant reported she had
a herniated disc and was treated with osteopathic
manipulation and medications. Dr. Beard diagnosed the
claimant with chronic cervical strain with bilateral
radicular symptoms; cervical MRI evidence of C5-6 disc
herniation with central canal and right foraminal
stenosis; low back pain; hypertension; possible chronic
bronchitis with chronic tobacco use history; and history
of gastric ulcers with chronic dyspepsia (Exhibit 21F)...
The evidence contains medical records from Dr. Sharooz
Jamie, the claimant’s treating physician. The claimant
was diagnosed with peptic ulcer disease, abdominal pain,
restless leg syndrome, and menopausal syndrome.
The
claimant received conservative treatment and prescribed
Zantac for peptic ulcer disease and Klonopin for her
restless leg syndrome.
There was no other treatment
prescribed and therefore, the undersigned finds that
these are non-severe.
(Tr. at 13-14.)
The

undersigned

has

thoroughly

reviewed

all

the

medical

records, and finds that the ALJ fully and correctly considered Dr.
Shahrooz Jamie and Dr. Zekan’s opinions, as well as those of the
consultative examining physicians and the state agency recordreviewing medical sources of record in keeping with the applicable
regulations.

The ALJ’s decision reflects that he both discussed

and adopted the diagnostic findings of these two physicians. It is
important to note that Dr. Zekan provided only one single page
report of MRI findings on April 14, 2002. (Tr. at 412.)

28

Dr.

Shahrooz

Jamie’s

mostly

illegible

reports

show

conservative

treatment and medication management.

Neither Dr. Zekan nor Dr.

Shahrooz

regarding

Jamie

offered

an

opinion

Claimant’s limitations or disability.

the

extent

of

Additionally, a cervical

spine x-ray dated August 9, 2006, ordered by Dr. Shahrooz Jamie and
read by Samuel Davis, M.D., did not show a herniation but rather
“arthritic and degenerative changes.”

(Tr. at 398.) Further, the

ALJ clearly and thoroughly described why Claimant had not met or
equaled a Listing.
Social Security Ruling 96-7p clarifies when the evaluation of
symptoms, including pain, under 20 C.F.R. §§ 404.1529 and 416.929
requires

a

finding

about

the

credibility

of

an

individual's

statements about pain or other symptom(s) and its functional
effects; explains the factors to be considered in assessing the
credibility of the individual's statements about symptoms; and
states the importance of explaining the reasons for the finding
about the credibility of the individual's statements.

The Ruling

further directs that factors in evaluating the credibility of an
individual's statements about pain or other symptoms and about the
effect the symptoms have on his or her ability to function must be
based on a consideration of all of the evidence in the case record.
This includes, but is not limited to:
- The medical signs and laboratory findings;
- Diagnosis, prognosis, and other medical opinions provided

29

by treating or examining physicians or psychologists and
other medical sources; and
- Statements and reports from the individual and from
treating or examining physicians or psychologists and
other persons about the individual's medical history,
treatment and response, prior work record and efforts to
work, daily activities, and other information concerning
the individual's symptoms and how the symptoms affect the
individual's ability to work.
The

ALJ

impairments

wrote
and

a

the

very

thorough

medical

Claimant’s daily activities.

evaluation

evidence

of

(Tr. at 13-19.)

of

record,

Claimant’s
including

The ALJ made these

specific findings regarding Claimant’s credibility:
The claimant testified at the first hearing she worked
for her sister doing housework to help pay her bills.
She cannot lift anything heavy. She had to cut her hair
because it was too heavy.
If she uses her arms, it
caused pain. It was a burning and dull ache into the
back of her head. Her headaches occurred twice a week,
lasting two to three hours unless she takes Tylenol. She
was prescribed Prevacid and Zantac to flush the bacteria
out of her system.
She can walk 200 yards until her
right leg starts to hurt. She can stand for 15 minutes
before she has to sit down.
Her daughter mops and
vacuums. Her daughter lives only 200 feet away from her.
Her daughter helps her with chores, paying the bills, and
buys her cigarettes. She sits on the porch a lot; that
is how she got her tan. She goes to church once in a
while. She has three grandchildren and she is not able
to babysit. She goes to the grocery store. She watches
television and does not read the paper. She can walk a
football field.
She has panic attacks, feels like a
heart attack. Her blood pressure pills make her sleepy.
She has crying spells and she cried off and on for half
of the day. She uses a rice bag and Tylenol to ease her
30

neck pain.
The claimant testified at the second hearing that the
only thing different was that her doctor had doubled her
blood pressure medicine.
The undersigned noted she
mentioned emotional problems at the prior hearing and the
claimant was crying. She has crying spells two times a
day and lasts three to four hours. She feels like she is
a burden to everyone. She does not think that Xanax was
helping her. She is seeking Dr. Thornton for her panic
attacks and depression. She has panic attacks twice a
month. She does not like being around people...She takes
Hydrocodone twice a day and helps for about two hours.
She lies down a lot...She smokes cigarettes daily...She
stopped seeing Dr. Thornton because she lost her medical
card.
She was off her medications for four to six
months. Dr. Jamie prescribed her Valium and Xanax. She
was having trouble sleeping and was prescribed Klonopin.
Dr. Jamie diagnosed her with restless leg syndrome. She
gets about six hours of sleep a night...She gets tired
from her blood pressure medicine and has hot flashes.
She loses sleep because of her conditions. She has flare
ups of her stomach problems if she eats spicy or greasy
foods or raw vegetables. Her stomach pain feels like
glass in her stomach and cars doing wheelies.
The undersigned finds that the claimant’s allegations/
symptoms are not supported by objective findings. During
the examination by Dr. Beard, the claimant reported that
she applied heat and ice to her neck and back “every once
in a while”, and takes over-the-counter Tylenol that
helped a little bit with her pain. Examination of the
claimant’s cervical spine revealed complaints of mild
pain with muscular tenderness.
Examination of the
shoulders revealed complaints of neck pain with normal
range of motion of the bilateral shoulders. Examination
of the hands revealed no tenderness, redness, warmth or
swelling and range of motion was normal. Evaluation of
the range of motion of the knees was normal. She had
mild discomfort with range of motion testing of the
lumbosacral spine and muscular tenderness. She was able
to stand on one leg alone. She had negative straight leg
raising test.
She had normal range of motion of the
hips. She was able to heel-walk, toe-walk, tandem walk,
and squat. X-rays revealed mild spondylitic changes and
narrowing most pronounced at C5-6.
There was no
weakness, atrophy, or sensory loss to suggest cervical
radiculopathy and there were no findings of myelopathy.
31

Examination of her lower back revealed some mild
discomfort on motion testing with preserved motion and no
evidence of nerve root impingement.
Regarding
hypertension, Dr. Beard did not appreciate end-organ
damage associated with this.
Regarding her stomach
ulcers, this was reflected within the medical records.
She has had no known history of bleeding ulcers and had
not required surgery or transfusions.
Regarding the
claimant’s respiratory function, she had a chronic
smoking history and symptoms suggestive of chronic
bronchitis. Pulmonary spirometry dated July 31, 2007,
was normal (Exhibit 21F)...
During examination by Dr. Mirza the claimant reported
that she took Xanax for her depression and her nervous
problems.
She reported that she took it “once in a
while.” At times she takes Xanax for a week or so, and
then she stops (Exhibit 6F/2).
A cervical spine x-ray dated August 9, 2006, showed the
cervical vertebral bodies were intact.
The dorsal
processes and lateral masses were intact; curvature and
alignment was normal; and the remaining cervical
intervertebral disc spaces were maintained (Exhibit
9F/53).
When the claimant saw Dr. Constantino Amores, he reviewed
the claimant’s neurological examinations and tests and
felt that conservative, non-surgical treatment would be
the best option...(Exhibit 1F).
When the claimant was examined by Dr. Ted Thornton on
June 14, 2005, he noted that she was doing well and her
mood was better. She had improved on her medication.
The claimant’s global assessment of functioning score was
50 (Exhibit 2F/1). Dr. Thornton noted on February 17,
2004, that she was doing well with her medications
(Exhibit 2F/11). Dr. Thornton noted that the claimant
interacted well; had direct eye contact; her mood was
euthymic; and her stream of thought was normal. On June
3, 2003, Dr. Thornton noted that the claimant was doing
better; sleeping seven hours; and her mood was better
(Exhibit 2F/23).
During examination by Mr. Sargent, the claimant’s affect
was mildly restricted.
The claimant’s mood was
remarkable for mild sadness and anxiety. Her thought
processes were understandable and connected.
Her
32

judgment was within normal limits and her insight was
fair. There was no evidence of psychomotor agitation or
retardation, other than mild restlessness. Her immediate
memory and remote memory were within normal limits. Her
persistence and pace were within normal limits.
Her
social functioning during the evaluation was within
normal limits (Exhibit 4F).
After considering the evidence of record, the undersigned
finds that the claimant’s medically determinable
impairments could reasonably be expected to produce the
alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting
effects of these symptoms are not fully credible. While
the claimant testified to significant physical symptoms
and limitations, the objective findings and degree of
treatment as described in this decision do not provide a
basis for such complaint. The state agency physicians
and a consultative examiner have evaluated the claimant,
supporting a significantly greater capacity for physical
activity that alleged by the claimant.
The claimant’s lack of credibility as to her physical
complaints raises a significant question as to her
allegations of significant psychological symptoms and
limitations. In addition, the treatment notes of Dr.
Thornton do not support the claimant’s testimony. While
Dr. Thornton assessed the claimant with a GAF of 50, the
balance of her treatment records indicate that the
claimant was functioning at a higher level.
With regard to side effects of medications, the
undersigned finds that the claimant suffers from no side
effects from any medications which would interfere with
performing the jobs identified by the vocational expert.
With regard to activities of daily living, the claimant
minimized her level of activity. The undersigned notes
in the medical records that there is no basis for such
restricted activities of daily living.
As to the effectiveness of treatment, the claimant has
received
treatment
for
the
allegedly
disabling
impairments, but the treatment has been essentially
routine and/or conservative in nature. Further, it the
claimant were suffering to the extent alleged it would be
expected that intensification of treatment would occur.
However, the claimant has continued on with conservative
33

treatment.
As for the opinion evidence, on August 14, 2006, Timothy
Saar, Ph.D., a state agency medical consultant, completed
a Psychiatric Review Technique form and opined that the
claimant did not have a severe impairment (Exhibit 5F).
The undersigned gives some weight to this opinion; but,
gives the benefit of doubt to the claimant and finds her
mental impairment is severe.
(Tr. at 16-19.)
In

his

decision,

the

ALJ

determined

that

Claimant

had

medically determinable impairments that could cause her alleged
symptoms.

(Tr. at 18.)

consideration

of

The ALJ’s decision contains a thorough

Claimant’s

daily

activities,

the

location,

duration, frequency, and intensity of Claimant’s pain and other
symptoms,

precipitating

and

aggravating

factors,

Claimant’s

medications, and treatment other than medication. (Tr. at 15-19.)
The ALJ explained his reasons for finding Claimant not entirely
credible, including objective findings, Claimant’s treatment, the
lack of evidence of side effects which would impact Claimant’s
ability to perform work, and her abundant self-reported daily
activities. Id.
With respect to Claimant’s argument that the ALJ wrongfully
discredited Claimant’s credibility, the court finds that the ALJ
properly weighed Claimant’s subjective complaints of pain and her
credibility in keeping with applicable regulations, case law, and
Social Security Ruling (“SSR”) and that his findings are supported
by substantial evidence.

20 C.F.R. §404.1529(b)(2006; SSR 96-7p,

34

1996 WL 374186 (July 2, 1996); Craig v. Chater, 76 F.3d 585, 594
(4th

Cir.

1996).

The

ALJ

found

that

Claimant’s

subjective

complaints simply were not corroborated by the objective medical
evidence of record.

The ALJ is required to evaluate a claimant’s

credibility, and the ALJ’s evaluation is entitled to great weight.
Social Security Ruling 95-5p.
Evaluation of Mental Impairment
Claimant next asserts that the ALJ failed to assign proper
weight to the opinions of her treating psychiatrist, Dr. Ted
Thornton, M.D.

(Pl.'s Br. at 12-14.)

Specifically, Claimant

argues:
[T]he ALJ simply chose to disregard the “treating
physician rule” and replace it with his own “hunch” or
“intuition” regarding Ms. Taylor’s psychiatric fitness.
The ALJ did not produce a scintilla of evidence to
counter the findings of her psychiatrist and nor can he
point to an inconsistent history of GAF scores. Instead,
he attempted to step into the shoes of a medical expert
by reading the notes and coming to a medical conclusion
that he is not qualified to make. At a minimum, the ALJ
should have summoned a medical expert to appear at the
hearing to clarify questions he might have had about the
GAF score compared to the treating notes he referenced in
his opinion. Under optimum circumstances, the Plaintiff
should have been fairly evaluated under the guidance of
Listing 12.04, with deferential consideration given to
her treating physician. Should that have occurred, the
Plaintiff posits with this Court that she either meets
the listing squarely, or when combined with her physical
ailments, equals a listing.
(Pl.'s Br. at 13.)
The Commissioner responds that Claimant’s assertion has no
merit because Dr. Thornton’s clinical findings, Mr. Sargent’s

35

findings, and Dr. Saar’s opinion support the ALJ’s conclusions.
(Def.’s Br. at 17-20.)

Specifically, the Commissioner argues:

Plaintiff’s one-sentence claim that she met a mental
disorder listing is without merit (Pl.'s Br. at 13).
Plaintiff failed to cite any factual basis for her claim.
Furthermore, as the foregoing analysis reveals, the ALJ
properly determined that Plaintiff’s impairments did not
satisfy any of the paragraph B criteria, let alone two of
the four criteria necessary to meet a mental disorder
listing such as Listing 12.04 (affective disorders) or
12.06 (anxiety-related disorders)(Tr. 14-15).
Other than occasionally asserting that Plaintiff had a
GAF of fifty, Dr. Thornton’s treatment notes from 2003 to
2005 provide little insight into Plaintiff’s actual
condition (Tr. 279-307). [A GAF score of fifty borders on
moderate, but indicates serious symptoms or serious
impairments
in
social,
occupational,
or
school
functioning. See DSM-IV-TR at 34.] In addition to the
fact that Plaintiff’s treatment records and activities
established that she was functioning at a higher level
than a GAF of fifty would suggest, Dr. Thornton’s GAF
assessment was appropriately called into question by the
ALJ because Dr. Thornton always assessed Plaintiff with
the same GAF of fifty during her entire two years of
treatment.
Furthermore, Plaintiff’s GAF scores were
routinely accompanied by the notation “doing well” (Tr.
279, 287, 289, 291, 293, 295, 297, 299).
Most
significantly,
Plaintiff’s
GAF
scores
were
also
inconsistent with Dr. Thornton’s own mental status
observations, as he repeatedly found that Plaintiff
interacted well, maintained appropriate eye contact, had
appropriate affect, normal thought patterns, and
appropriate and informative content of thought (Tr. 280,
282, 284, 286, 288, 290, 292, 294, 296, 298, 300, 302,
304).
Lastly, Plaintiff’s mental impairments were
apparently minimal enough for her to discontinue
treatment in 2005...
The ALJ’s finding that Plaintiff did not have a disabling
mental impairment was fully supported by the findings of
the consultative examiner and state agency reviewing
physician. The licensed psychologist, Lester Sargent,
MA...[u]nlike the conclusory, unsupported opinion of Dr.
Thornton, the consultative examiner’s findings were welldocumented and consistent with Plaintiff’s stated
36

activities of daily living.
Finally, the ALJ also properly accorded weight to the
opinion of the state agency reviewing consultant, Dr.
Saar (Tr. 19, 316-29)...Dr. Saar found that Plaintiff
related well, and opined that “the evidence does not
support severe limitations” in functional capacity (Tr.
328). Although Dr. Saar found that Plaintiff’s mental
impairment was not severe, the ALJ generously gave
Plaintiff the benefit of the doubt in finding that
Plaintiff’s mental impairment was severe for purposes of
his decision (Tr. 19). In short, substantial evidence
supports the ALJ’s determination that Plaintiff did not
suffer from a disabling mental impairment.
(Def.’s Br. at 18-19.)
When evaluating a claimant’s mental impairments, the Social
Security Administration uses a special sequential analysis outlined
at 20

C.F.R. §§ 404.1520a and 416.920a.

First, symptoms, signs,

and laboratory findings are evaluated to determine whether a
claimant

has

a

medically

determinable

mental

404.1520a(b)(1) and 416.920a(b)(1)(2010).

impairment.

§§

Second, if the ALJ

determines that an impairment(s) exists, the ALJ must specify in
his/her decision the symptoms, signs, and laboratory findings that
substantiate the presence of the impairment(s). §§ 404.1520a(b)(1)
and (e), 416.920a(b)(1) and (e)(2010).
rate

the

degree

impairment(s).

of

functional

Third, the ALJ then must

limitation

resulting

from

the

§§ 404.1520a(b)(2) and 416.920a(b)(2)(2010).

Functional limitation is rated with respect to four broad areas
(activities of daily living, social functioning, concentration,
persistence

or

pace,

and

episodes

of

404.1520a(c)(3) and 416.920a(c)(3) (2010).
37

decompensation).

§§

The first three areas

are rated on a five-point scale: None, mild, moderate, marked, and
extreme. The fourth area is rated on a four-point scale: None, one
or two, three, four or more. §§ 404.1520a(c)(4) and 416.920a(c)(4)
(2010).

A rating of “none” or “mild” in the first three areas, and

a rating of “none” in the fourth area will generally lead to a
conclusion that the mental impairment is not “severe,” unless the
evidence

indicates

otherwise.

§§

404.1520a(d)(1)

and

416.920a(d)(1) (2010). Fourth, if a mental impairment is “severe,”
the ALJ will determine if it meets or is equivalent in severity to
a mental disorder listed in Appendix 1. §§ 404.1520a(d)(2) and
416.920a(d)(2) (2010).

Fifth, if a mental impairment is “severe”

but does not meet the criteria in the Listings, the ALJ will assess
the claimant’s residual functional capacity.
and 416.920a(d)(3) (2010).

§§ 404.1520a(d)(3)

The ALJ incorporates the findings

derived from the analysis in the ALJ’s decision:
The decision must show the significant history, including
examination and laboratory findings, and the functional
limitations that were considered in reaching a conclusion
about the severity of the mental impairment(s).
The
decision must include a specific finding as to the degree
of limitation in each of the functional areas described
in paragraph (c) of this section.
§§ 404.1520a(e)(2) and 416.920a(e)(2) (2010).
As previously addressed, the ALJ found that Claimant suffered
from the severe mental impairments of depression and anxiety. (Tr.
at 13-14.)

In making this finding, the ALJ stated:

38

With regard to the claimant’s mental impairment, a
comprehensive psychiatric evaluation was performed on
January 14, 2003, by Ted Thornton.
The claimant
presented complaints of nervousness and anxiety. She was
tearful and quite depressed during the interview. She
was diagnosed with major depression, recurrent; features
of generalized anxiety disorder; and features of panic
disorder. She had a global assessment of functioning
score of about 50 (Exhibit 2F/28). On June 14, 2005, the
claimant was diagnosed with major depressive disorder and
generalized anxiety disorder (Exhibit 2F/1).
The claimant underwent a consultative psychological
evaluation on August 3, 2006, by Lester Sargent, M.A.
The claimant was cooperative throughout the evaluation.
Her recent memory was severely deficient. The claimant’s
concentration was mildly deficient.
The claimant was
diagnosed with anxiety disorder, not otherwise specified
(mixed anxiety-depression disorder) (Exhibit 4F)...
(Tr. at 14.)
When the claimant was examined by Dr. Ted Thornton on
June 14, 2005, he noted that she was doing well and her
mood was better. She had improved on her medication.
The claimant’s global assessment of functioning score was
50 (Exhibit 2F/11). Dr. Thornton noted that the claimant
interacted well; had direct eye contact; her mood was
euthymic; and her stream of thought was normal. On June
3, 2003, Dr. Thornton noted that the claimant was doing
better; sleeping seven hours; and her mood was better
(Exhibit 2F/23).
During the examination by Mr. Sargent, the claimant’s
affect was mildly restricted. The claimant’s mood was
remarkable for mild sadness and anxiety. Her thought
processes were understandable and connected.
Her
judgment was within normal limits and her insight was
fair. There was no evidence of psychomotor agitation or
retardation, other than mild restlessness. Her immediate
memory and remote memory were within normal limits. Her
persistence and pace were within normal limits.
Her
social functioning during the evaluation was within
normal limits (Exhibit 4F)...
The claimant’s lack of credibility as to her physical
complaints raises a significant question as to her
allegations of significant psychological symptoms and
39

limitations. In addition, the treatment notes of Dr.
Thornton do not support the claimant’s testimony. While
Dr. Thornton assessed the claimant with a GAF of 50, the
balance of her treatment records indicate that the
claimant was functioning at a higher level.
(Tr. at 18.)
After determining at the fourth step that Claimant’s mental
impairment was “severe,” the ALJ then determined that Claimant’s
depression and anxiety did not meet or equal in severity a mental
disorder

listed

in

416.920a(d)(2) (2010).

Appendix

1.

§§

404.1520a(d)(2)

and

Then, at the Fifth step, the ALJ assessed

the claimant’s residual functional capacity.

§§ 404.1520a(d)(3)

and 416.920a(d)(3) (2010).
With regard to side effects of medications, the
undersigned finds that the claimant suffers from no side
effects from any medications which would interfere with
performing the jobs identified by the vocational expert.
With regard to activities of daily living, the claimant
minimized her level of activity. The undersigned notes
in the medical records that there is no basis for such
restricted activities of daily living.
As to the effectiveness of treatment, the claimant has
received
treatment
for
the
allegedly
disabling
impairments, but the treatment has been essentially
routine and/or conservative in nature. Further, it the
claimant were suffering to the extent alleged it would be
expected that intensification of treatment would occur.
However, the claimant has continued on with conservative
treatment.
As for the opinion evidence, on August 14, 2006, Timothy
Saar, Ph.D., a state agency medical consultant, completed
a Psychiatric Review Technique form and opined that the
claimant did not have a severe impairment (Exhibit 5F).
The undersigned gives some weight to this opinion; but,
gives the benefit of doubt to the claimant and finds her
mental impairment is severe.
40

On September 5, A. Rafael Gomez, M.D., a state agency
medical consultant, completed a Physical Residual
Functional Capacity Assessment and concluded that the
claimant could perform a restricted range of medium
exertional work (Exhibit 7F). As this assessment is well
supported by the medical record, it is given significant
weight.
On December 9, 2006, James Egnor, M.D., a state agency
medical consultant, completed a Physical Residual
Functional Capacity Assessment and concluded that the
claimant could perform a restricted range of medium
exertional work (Exhibit 10F). As this assessment also
is well supported by the medical record, it is given
significant weight.
On December 14, 2006, Debra Lilly, Ph.D., a state agency
medical consultant, completed a Psychiatric Review
Technique form and opined that the claimant does not have
a severe mental impairment (Exhibit 11F).
This
assessment is given no weight as it is not supported by
the medical record...
(Tr. at 18-19.)
If the claimant had the residual functional capacity to
perform the full range of light work, a finding of “not
disabled” would be 202.17.
However, the claimant’s
ability to perform all or substantially all of the
requirements of this level of work has been impeded by
additional limitations. To determine the extent to which
these limitations erode the unskilled light occupational
base, the ALJ asked the vocational expert whether jobs
exist in the national economy for an individual with the
claimant’s age, education, work experience, and residual
functional capacity.
The vocational expert testified
that given all of these factors the individual would be
able to perform the requirements of representative
occupations such as small parts assembler...and price
marker...Pursuant to SSR 00-4p, the vocational expert’s
testimony is consistent with the information contained in
the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, the
undersigned concludes that, considering the claimant’s
age, education, and residual functional capacity, the
claimant has been capable of making a successful
adjustment to other work that exists in significant
41

numbers in the national economy.
A finding of “not
disabled” is therefore appropriate under the framework of
the above-cited rule.
(Tr. at 19.)
Clearly the ALJ did not “disregard the “treating physician
rule” and replace it with his own “hunch” or “intuition” regarding
Ms. Taylor’s psychiatric fitness” as alleged by Claimant. (Pl.'s
Br. at 13.)

The ALJ thoroughly discussed Dr. Thornton’s reports

and found that Claimant had the severe mental impairments of
depression and anxiety. (Tr. at 13-14.) He then evaluated all the
evidence of record and determined that Claimant’s depression and
anxiety did not meet or equal in severity a mental disorder listed
in Appendix 1. §§ 404.1520a(d)(2) and 416.920a(d)(2) (2010).

(Tr.

at 14-15.) Then, through a series of hypothetical questions to the
Vocational Expert with participation by Claimant’s representative,
the ALJ assessed the claimant’s residual functional capacity and
eventually reached the conclusion that Claimant could make a
successful adjustment to other work that exists in significant
numbers

in

the

national

economy.

§§

404.1520a(d)(3)

and

416.920a(d)(3) (2010). (Tr. at 20, 36-43.)
Additionally, the undersigned finds no merit in Claimant’s
assertion that the ALJ should have had a medical expert testify at
the administrative hearing “to clarify questions he might have had
about the GAF score compared to the treating notes he referenced in
his opinion” (Pl.'s Br. at 13.)

Clearly, the ALJ did not have any

42

questions regarding the GAF score as he found: “While Dr. Thornton
assessed the claimant with a GAF of 50, the balance of her
treatment records indicate that the claimant was functioning at a
higher level.”
Regarding

(Tr. at 18.)
the

ALJ’s

duty

to

refer

a

claimant

for a

consultative examination, 20 C.F.R. § 416.917 (2010) provides that
[i]f your medical sources cannot or will not
give us sufficient medical evidence about your
impairment for us to determine whether you are
disabled or blind, we may ask you to have one
or more physical or mental examinations or
tests.
It is Claimant’s responsibility to prove to the Commissioner
that he or she is disabled.

20 C.F.R. § 416.912(a) (2010).

Thus,

Claimant is responsible for providing medical evidence to the
Commissioner showing that he or she has an impairment.
416.912(c).

In 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 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).

43

Id. §

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 undersigned finds that the ALJ properly evaluated the
claim and was not delinquent in any duty to refer a claimant for a
consultative examination per 20 C.F.R. § 416.917 (2010) or to have
had a medical expert testify at the administrative hearing.

It is

noted that the regulation provides that an ALJ “may” ask for a
physical or mental examination if there is not sufficient medical
evidence about the impairment to determine whether a disability
exists.

Here, the ALJ held the record open following the first

administrative hearing for the claimant to undergo a consultative
physical examination.

(Tr. at 10, 74.)

Additionally, the ALJ

found the claimant had a severe mental impairment despite two State
agency medical consultants, Drs. Saar and Lilly, determining that
Claimant did not have a severe mental impairment. (Tr. at 13-14,
19, 316-29, 421-34.)

It is clear from the decision that the ALJ

44

considered

the

entire

record,

including

Claimant’s

testimony

regarding her medical treatment, medications, and activities of
daily living. (Tr. at 10-21.)

Substantial evidence supports the

ALJ’s determination that Claimant did not suffer from a disabling
mental impairment.
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.
The Clerk of this court is directed to transmit this Order to
all counsel of record.
ENTER: September 22, 2011

45