Goodwin v. Astrue

Filing 17

MEMORANDUM OPINION: the final decision of the Commissioner is AFFIRMED and this matter is DISMISSED from the docket of the court. Signed by Magistrate Judge Mary E. Stanley on 9/27/2012. (cc: counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
WESLEY MORRIS GOODWIN,
Plaintiff,
v.

CASE NO. 2:11-cv-00594

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of Social
Security denying Claimant’s application for Supplemental Security Income (“SSI”), under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Both parties have consented
in writing to a decision by the United States Magistrate Judge.
Plaintiff, Wesley Morris Goodwin (hereinafter referred to as “Claimant”), filed an
application for SSI on November 12, 2008, alleging disability as of November 12, 2008, due
to amnesia, traumatic brain injury, back and leg problems, arthritis in knees, headaches
and hearing problems. (Tr. at 15, 128-33, 147-55, 178-83, 196-200.) The claim was denied
initially and upon reconsideration. (Tr. at 15, 68-72, 83-85.) On August 26, 2009,
Claimant requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. at 86-87.)
The hearing was held on April 19, 2010 before the Honorable Harry C. Taylor, II. (Tr. at 2965, 97-102, 103-08.) At the conclusion of the hearing, Judge Taylor gave Claimant’s
representative an additional ten days in order to submit the results of a neuropsychological
examination. (Tr. at 15.) No records were received and the record was closed. Id. By

decision dated June 17, 2010, the ALJ determined that Claimant was not entitled to
benefits. (Tr. at 15-28.) The ALJ’s decision became the final decision of the Commissioner
on August 2, 2011, when the Appeals Council denied Claimant’s request for review. (Tr. at
1-4.) On September 1, 2011, Claimant brought the present action seeking judicial review
of the administrative decision pursuant to 42 U.S.C. § 405(g).
Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(I), a claimant for disability
benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773,
774 (4th Cir. 1972). A disability is defined as the inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which . . . can be expected to last for a continuous period of not less than 12 months . . . .”
42 U.S.C. § 1382c(a)(3)(A).
The Social Security Regulations establish a “sequential evaluation” for the
adjudication of disability claims. 20 C.F.R. § 416.920 (2011). 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. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The
2

burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th
Cir. 1983), and leads to the fifth and final inquiry: whether the claimant is able to perform
other forms of substantial gainful activity, considering claimant’s remaining physical and
mental capacities and claimant’s age, education and prior work experience. 20 C.F.R. §
416.920(f) (2011). 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 he has not engaged in substantial gainful activity since the alleged onset date. (Tr.
at 17.) Under the second inquiry, the ALJ found that Claimant suffers from the severe
impairments of mood disorder, amnestic disorder, NOS, and chronic back and shoulder
pain. (Tr. at 17-18.) 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. (Tr. at 18-20.) The
ALJ then found that Claimant has a residual functional capacity for sedentary to light work,
reduced by nonexertional limitations. (Tr. at 20-27.) Claimant has no past relevant work.
(Tr. at 27.) Nevertheless, the ALJ concluded that Claimant could perform jobs such as
laundry worker, hand packer, mail room clerk, surveillance systems monitor, and assembler
which exist in significant numbers in the national economy. (Tr. at 27-28.) On this basis,
benefits were denied. (Tr. at 28.)
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,
3

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. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). 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 39 years old at the time of the administrative hearing. (Tr. at 32.) He
has a high school education with no special education. (Tr. at 35, 255.) In the past, he
testified that his father told him that he had “worked on computers for 18 years.” (Tr. at
42.) Claimant’s employment records do not affirm this testimony and indicate that he had
no employment history prior to 1988 and no employment history after 2000. (Tr. at 13536.) For the eleven years that he reported income ($9,543.27 total income), only the year
2000 reflects employment with a company named “Computer Pile Com Inc., Southport,
Indiana” wherein he earned $336.00 in the entire year. (Tr. at 135-37.)

4

The Medical Record
The court has reviewed all evidence of record, including the medical evidence of
record, and will discuss it further below as necessary.
Physical Health Evidence
On February 5, 2008, Claimant had an evaluation at the Charleston Area Medical
Center [CAMC] Physical Therapy and Sports Medicine Center for neck, left shoulder, and
low back pain. (Tr. at 214-22.) Physical Therapist Lynn Isernia recommended physical
therapy once to twice a week for four weeks. (Tr. at 220.) Claimant did not show for
physical therapy appointments and he was discharged from the program on February 29,
2008. (Tr. at 214.)
On June 26, 2008, Claimant presented to the CAMC Emergency Department with
complaints of toothache. (Tr. at 240-42.) Brendan L. O’Hara, M.D. stated:
This 38-year-old male scheduled for total mouth dental extraction for August
is complaining of pain in multiple teeth. The pain has been continuous for
3 weeks...He has been on amoxicillin for 3 weeks. He has no fever or chills
and no facial swelling...He was given prescription for oxycodone 5 mg,
number 20 tablets. He was told to follow-up [with a] dentist for ongoing pain
management.
(Tr. at 241.)
On August 12, 2008, handwritten notes from Family Care indicate Claimant was
treated for “possible arthritis in thumb... hypertension...tobacco use...acute sinusitis.” (Tr.
at 223.)
On November 6, 2008, Claimant presented to the CAMC Emergency Department
with complaints of anxiety and memory loss. (Tr. at 235-39.) Richard A. Capito, attending
physician, wrote:

5

This is a 38-year-old white male who was brought by EMS with complaints
of memory loss according to the EMS report. The patient complains of fall
with memory loss over 4 hours ago. The patient was served with a domestic
violence petition by the police department and then he said he was amnesic
and he has fallen a few hours prior to being served. According to the EMS
report, the patient was able to walk down 8 steps and was able to pick up the
special items, bending and walking without effort prior to being transported.
While arriving in the ER, the patient states that he is not aware of his
location. He has had a time loss, however, he denied any history of fall while
interviewing in the ER. The patient does not have any external signs of any
injuries other than a slight superficial abrasion on the right forehead. No
bruises or lacerations noted. The patient also has a history of chronic back
pain...
As described earlier of the patient’s social situation, he was actually served
with a domestic violence petition by the police department and the episodes
of amnesia or the complaint of amnesia started after he was served with the
domestic violence petition. Clinically he is stable except for the sinusitis,
which we are going to treat. I am going to put the patient on amoxicillin 500
mg 1 p.o.q. 12h for 10 days. Also, the patient wanted his blood pressure
medication refills. I am going to give him a refill of Tenoretic 50/25 one p.o.
daily, quantity 30. The patient will be discharged to the men’s shelter.
(Tr. at 235-37.)
On November 6, 2008, John Alan Willis, M.D., CAMC, reviewed a CT without
contrast scan of Claimant’s head and concluded:
I have for comparison a study from 12/28/2007. Brain parenchyma is
normal without evidence of infarct, hemorrhage, or mass. There has been no
interval change.
On the bone windows, there is opacification of the right maximillary sinus
and correlation concerning possible sinusitis is recommended. There is also
mucosal thickening involving multiple ethmoid cells.
IMPRESSION:
1.
Negative noncontrasted CT of the brain.
2.
Paranasal sinus disease.
(Tr. at 239.)
On November 6, 2008, Dr. Willis also reviewed an x-ray of Claimant’s chest and

6

concluded: “Compared with 12/28/2007, the lungs remain clear. Heart is at the upper
limits of normal for size and the pulmonary vascularity is normal. IMPRESSION: No active
cardiopulmonary disease.” (Tr. at 238.)
On November 8, 2008, Claimant presented to the CAMC Emergency Department
with complaints of back pain and right shoulder pain. (Tr. at 228-33.) Leon S. Kwei, M.D.,
attending physician, wrote:
This is a 38-year-old white male, who was brought to EMS with complaints
of low back pain and right shoulder pain. This is a patient actually seen here
two days ago for anxiety and transient memory loss. Please see the ED
evaluation at that time for further details. To recap his story, the patient
states he fell down a few steps at home in the porch of the house, however,
today he did not show any signs of confusion. Upon arrival, the patient was
also able to recognize me, who had seen him that 2 days ago and he was able
to recall the incident. He states that during the fall 2 days ago at [the] house
he hurt his back as well as right shoulder...
EMERGENCY ROOM DIAGNOSTIC WORKUP: This patient’s L-spine x-ray
is negative for any acute fracture, dislocation or subluxation. Also, the right
shoulder x-ray reviewed and showed no signs of dislocation or subluxation...
I explained to the patient the findings, at that time, he knew he was going to
be discharged. The patient states that he does not know how he came here.
We suspect malingering and probably secondary gains and reviewing the ED
evaluation 2 days ago, the patient did not have any prior amnesic episode
until he was served the restraining order, however we consulted Social
Service regarding this issue placement since the patient is medically clear to
be discharged. Please see detailed notes by the social worker regarding this
issue. The patient was told that we are going to make arrangements for the
patient to go to the men’s shelter. However, at that time, the patient came up
with friend’s home number and spoke to a friend, who indicated that he will
be okay to go to the patient’s friend’s mother and the patient came up with
the address and we provided bus ticket for the patient to reach friend’s
mother’s house...
(Tr. at 229-30.)
On November 12, 2008, Claimant presented to the CAMC Emergency Department
with complaints of memory loss. (Tr. at 228-33.) John S. Bodkin, D.O., attending
7

physician, wrote:
This is a 38-year-old white male who presents to the Emergency Department
via walking complaining of memory loss. He then relates that on 11/06 he fell
through a porch. He says the next thing he remembered he woke up talking
to the EMS and police. He had shoulder and back pain. He says since then
he has been spending a few days at the men’s shelter. In the midst of this he
has a domestic violence petition filed against him and he was evaluated by the
police...
He does not seem to have any problem with his memory. He related the same
histories on 11/06 and 11/08 when he was here. I am not quite sure why he
is here and when I asked the patient the problem he is having with his
memory he really cannot relate this to me. He did have negative workups on
11/06 and 11/08...
He was told to follow up at Family Care. Apparently the men’s shelter
contacted Family Care and they instructed him to come here.
(Tr. at 225.)
On November 17, 2008, Claimant was treated at West Virginia Health Right, Inc.
(Tr. at 247.) All boxes on the form were checked as “NML [normal]” save for “Neurological”
which was checked as “ABN [abnormal]” due to “memory loss.” (Tr. at 247.)
On November 18, 2008, Claimant had a chest x-ray at CAMC wherein John Mega,
M.D. reported: “No radiographic evidence for an acute process. No interval change from
11/06/08.” (Tr. at 249.)
On December 10, 2008, Claimant was treated at West Virginia Health Right, Inc.
(Tr. at 248.) Anna M. Holliday, MSN [Master of Science in Nursing], CFNP [Certified
Family Nurse Practitioner], stated:
Pt [patient] presents with c/o [complaints of] injury from 11/08...ED
[Emergency Department] report reviewed; pt presented multiple time with
chief complaint unclear. Questionable amnesia surrounding timeline of
domestic violence petition. Pt cannot clarify history of injury. CT head
normal, lumbar x-ray normal, chest x-ray normal + THC
[Tetrahydrocannabinol (psychoactive compound in marijuana)] in ED. Pt
8

now lives at men’s shelter. No acute issues today...
Assessment:
poor historian, drug use, + marijuana
chronic low back pain, right leg pain (films WNL [within normal limits])...
(Tr. at 248.)
On March 7, 2009, Claimant was treated at CAMC Emergency Department for
complaints of left ear pain. (Tr. at 287, 297.) Jessica L. Sop, D.O., diagnosed “[l]eft otitis
media” and prescribed Auralgan otic drops 3 drops to left ear, amoxicillin 875 mg p.o.” (Tr.
at 288, 298.)
On March 11, 2009, a State agency medical source provided a Disability
Determination Evaluation of Claimant. (Tr. at 250-53.) The evaluator, Nilima Bhirud,
M.D., concluded: “The claimant is a 38-year-old male who gives history of fall on November
6, 2008. The patient has tenderness over cervical spine, but the range of motion was
normal. He also seems to have impaired memory.” (Tr. at 252.)
On April 2, 2009, a State agency medical source completed a Physical Residual
Functional Capacity Assessment [PRFCA] form. (Tr. at 274-81.) The evaluator, James
Egnor, M.D., found that Claimant’s primary diagnosis was “MORBID OBESITY” and his
secondary diagnosis was “TBI” [Traumatic Brain Injury]. (Tr. at 274.) Dr. Egnor found
that Claimant could do medium work and perform all postural limitations occasionally save
for “[c]limbing ladder/ropes/scaffolds, which he could “[n]ever” do. (Tr. at 275-76.) He
found that Claimant had no manipulative, visual, or communicative limitations and no
environmental limitations save to avoid concentrated exposure to extreme cold, vibration,
and hazards. (Tr. at 277-78.) Dr. Egnor concluded: “The complaints are regarded as not
fully credible and the RFC is reduced to do only medium work with some postural and
9

environmental limitations as noted.” (Tr. at 281.)
On May 13, 2009, Claimant was treated at CAMC Emergency Department for “[l]eft
ankle pain.” (Tr. at 283, 299.) Leon S. Kwei, M.D. concluded: “Three views of the ankle,
no fracture per Dr. Muto...Left ankle sprain...Discharge home.”. (Tr. at 283-85, 299-301.)
On July 2, 2009, Claimant was treated at CAMC Emergency Department for
complaints of “[a]bdominal pain, chest pain, vomiting blood.” (Tr. at 302.) William N.
Payne, M.D. stated:
The patient apparently was found by EMS “patient in tub yelling for help”.
The police were on the scene apparently he had drunk a pint of vodka,
although he says three shots. No mention was made of any blood at the scene
and he was brought to the hospital...He says the pain is burning in his
abdomen, he had it last night. He has been drinking the tequila yesterday
and vodka today. He says he does not normally drink very much. The pain
went up into the chest today. He vomited several times, he thinks there
might have been some bloody material in it. He is not really sure...
The patient was found to be alcohol intoxicated with alcohol of 150.
Hemoglobin and hematocrit were normal. Cardiac enzymes were negative.
EKG showed no ischemia...It was felt he may have gastritis, possibly from his
drinking. He denies any regular alcohol abuse but there was some question
as his girlfriend stated he had been drinking tequila yesterday which he
additionally denied...He was discharged with his girlfriend who will watch
him and return to ER if worse.
(Tr. at 302-03.)
On July 7, 2009, a State agency medical source provided a “Case Analysis.” (Tr. at
295.) The evaluator, A. Rafael Gomez, M.D. concluded: “This patient was reviewed on
04/02/09 and reduced to medium work. At reconsideration a one line note added the
diagnosis of left ankle sprain. There is no change in the previous RFC.” Id.
Mental Health Evidence
On December 4, 2008, Claimant was referred to Prestera Center East by the

10

Charleston Men’s Shelter for a comprehensive psychiatric evaluation. (Tr. at 243-46.)
Louann Munday, APRN [Advanced Practice Registered Nurse], BC-FNP [Board Certified Family Nurse Practitioner], BC-ADM [Board Certified - Alcohol, Drug Abuse and Mental
Health], stated:
Wesley said he fell through a porch at someone’s house on November 6,
2008. He is unsure how long he was in the hospital or exactly when he fell
but he has been back to the hospital three times. He said he has no memory
now. He has a five-year-old son and by another woman he has a teenage son
and daughter. He doesn’t see them and he is uncertain how old they are. I
asked if he was single or married but he said he is unsure if he has ever been
married. He thinks he is single but not really sure...
PSYCHOSOCIAL HISTORY:
He was born in Greensburg, Indiana. He has two sisters. He is unsure if he
is older or younger. He is unsure if he was raised by his parents. He can’t
remember his sisters. He only knows he has sisters because his father told
him...
MENTAL STATUS EXAMINATION:
On exam today, the client noted to be a mildly obese Caucasian American
male. He was disheveled. He has very long unkempt hair. He has a
mustache and beard that are quite long. No motor abnormalities. Mood
appears to be dysphoric. Affect was broad. No suicidal or homicidal ideation.
Thought process and content within normal limits. Cognitively he was alert.
He was oriented to person, place, and time. Memory for immediate, recent,
and remote events intact per testing only. He could answer how many states
there were in the United States and what temperature water froze. He knew
nothing about his family or anything about his history. He did not know who
the president was. Insight and judgment good per standard tests.
DIAGNOSES:
Axis I
Mood Disorder due to Memory Loss. 293.83
Axis II
Deferred
Axis III
Poor Memory
Axis IV
Psychosocial stressors: 09
Axis V
Current GAF: 65
(Tr. at 243-45.)
On March 16, 2009, Joann B. Daley, Clinical Psychologist, provided a

11

“Neuropsychological Screening Profile” of Claimant. (Tr. at 254-59.) She noted:
He works daily as a volunteer at the Kanawha County Wellness and Recovery
Center...
He said he worked for 17 years in Indiana and W. Va. “I built, repaired, and
programmed computers.” He said a friend, Reno, who has known him since
he came to W. Va., told him he started a computer shop in Parkersburg ten
years ago but had to close it because his partner went to Iraq...
(Tr. at 255.)
Regarding IQ, Ms. Daley stated that Claimant tested on the WAIS-III as having the
following scores: Verbal IQ 96, Performance IQ 99, Full Scale IQ 98, Verbal Comprehension
101, and Perceptual Organization 105. (Tr. at 256.) Regarding the memory assessment
testing, she concluded that he was average in the areas of level of consciousness,
orientation, attention, language, comprehension, repetition, naming, constructions,
calculations, reasoning, similarities, and judgement. (Tr. at 257.) However, she found he
was “mildly impaired” in memory.
Ms. Daley concluded:
MENTAL STATUS EXAMINATION: Appearance: He has almost waist length
brown bushy hair, parted in the middle and a thick, trimmed moustache and
beard. He wore a heavy black jacket and sweat pants his arms and fingers are
noticeably short. Attitude/Behavior was polite and cooperative. Speech was
spontaneous, relevant, and coherent and Orientation was correct in all
spheres. Mood was normal and Affect was solemn and restricted. There was
no evidence of Thought Process impairment. Thought Content: There was
no evidence of delusions, paranoia, preoccupations, obsessions, or phobias.
Perceptual: There was no evidence of illusions, depersonalizations, deja vu,
or hallucinations. Insight was limited and Judgment was average on the
basis of the WAIS-III Comprehensive subtest score of 11. There was no
indication of Suicidal Ideation. Immediate Memory: Within normal limits
based on immediate recall of all four words. Recent Memory: Moderately
deficient based on recall of two of four words after thirty minutes. Remote
Memory: Inconsistent based on his ability to recall details of his personal
history. He said that he didn’t recall high school but had given his graduation
date on his application. He knew the ages of his children in Indiana and who
12

he had a computer business with several years ago. Concentration was mildly
deficient on the basis of the WAIS-III Digit Span subtest score of 7.
Persistence: Within normal limits as demonstrated by test taking behavior.
Pace: Within normal limits as observed during the evaluation. Social
Functioning During the Evaluation: Within normal limits based on clinical
observation of his social interaction with the examiner during the evaluation.
He was very polite and seemed sincere and eye contact was good.
SOCIAL FUNCTIONING - SELF REPORTED: He said he has some
acquaintances at the men’s shelter, where he has been since mid-November
and gets along fairly well with them...He used to play chess with a fellow who
left. When he is volunteering at the Wellness and Recovery Center, four or
five hours every week day, “I talk to people who come in and try to keep a
friendly environment...I mostly listen to other people about their issues and
their problems...I use the Internet for people who can’t get to peer support
places.” He hasn’t seen his girlfriend or son since he left and she refuses to
respond to his calls.
DAILY ACTIVITIES: He is awakened at 7 a.m., walks to Manna Meal for
breakfast, and walks to the Wellness and Recovery Center, which is nearby.
He leaves there for lunch at Manna Meal and everyday he walks around town
several times a day. “I can’t make it too far because of my knees and back.”
He goes back to the shelter for supper, watches television and listens to the
radio. On week-ends he mostly stays there. In regard to his activities when
he was with Melissa, he said he doesn’t remember what he did. “I don’t
remember by own son...I’m sure I did something but I don’t remember.”
DIAGNOSIS:
Axis I
Axis II
Axis III

294.8
V71.09

Amnestic Disorder NOS
No Diagnosis
High blood pressure and head injury by self
report.

DIAGNOSTIC RATIONALE: The diagnosis of Amnestic Disorder NOS is
made because memory loss symptoms do not meet criteria for a more specific
disorder.
PROGNOSIS: Unknown.
CAPABILITY: He would be considered competent to manage disability
benefits in his own best interest.
(Tr. at 257.)

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On March 27, 2009, a State agency medical source completed a Psychiatric Review
Technique form [PRTF]. (Tr. at 260-73.) The evaluator, John Todd, Ph.D. concluded that
Claimant’s impairment was “[n]ot [s]evere” for either category of “Organic Mental
Disorders” i.e. “Amnestic D/O [disorder] NOS [not otherwise specified]” or “Substance
Addiction Disorders” i.e. “Cannabis Abuse.” (Tr. at 260-61, 268.) Dr. Todd found that
Claimant had a mild degree of limitation regarding restriction of activities of daily living
and difficulties in maintaining concentration, persistence, or pace, no limitation regarding
maintaining social functioning and no episodes of decompensation, each of extended
duration. (Tr. at 270.) He marked that the evidence does not establish the presence of the
“C” criteria. (Tr. at 271.) Dr. Todd concluded:
Clmt [claimant] is partially credible w/ [with] complaints inconsistent w/
objective evidence. Clmt c/o [complains of] problems with memory but TS
[treating source] noted memory was intact w/ CE [clinical evaluation] noting
mod [moderate] def [deficiency] in remote memory which is given little
weight as clmt’s daily activities are inconsistent with memory problems, ER
[emergency room] noting normal findings, valid ave [average] IQ received at
psych CE and only mild impairment in memory noted on neuro screening.
As clmt was found to be abusing drugs at ER visit and from physical TS,
though he denied any SA [substance abuse] at CE, calls into question clmts
veracity. There is no evidence of severe limitations due to a mental D/O
[disorder] and is considered NON-SEVERE.
(Tr. at 272.)
On July 17, 2009, a State agency medical source provided a “Case Analysis.” (Tr. at
296.) The evaluator, Holly Cloonan, Ph.D. concluded: “I have reviewed all the evidence in
file and the PRTF of 3/27/09 is affirmed as written.” (Tr. at 296.)
On September 18, 2009, Claimant was treated at CAMC Emergency Department for
“I do not know.” (Tr. at 306.) Leon S. Kwei, M.D. stated:
Per the EMS run sheet, they were dispatched for a person lying down. They
14

stated that the patient would not tell them what his complaint was about.
They report that he was reportedly being arrested by the Charleston Police
Department and became unresponsive. They picked him up and he started
cursing them and stated that he did not want them to touch him and he didn’t
consent to blood test, again he did not have any real complaints. When I
talked to the patient, the patient tells me that he is not sure why he is here.
He says he just wants to die. He does not have any definite complaints other
than he wants to die. He says that he wants to be out of his restraints. I
actually did see him as I went into the room to evaluate him he was already
belligerent with the staff trying to hit our staff and our security guard, at that
point he was being restrained for his safety and our safety...The patient was
actually in the emergency room earlier in the day and left without being seen.
At that point from [what] everyone is telling me is that the patient was alert
and oriented and had no other complaints at that time. Again, the patient
continues to tell me to get the f___ [out] of his room and that I am not going
to be doing any exams on him...
The patient was placed on restraints all four extremities for his protection
and ours. We will order ancillary labs included CBC, CMP, urinalysis, drug
screen, alcohol level and a TSH.
At this point, the plan will be to consult Behavioral Medicine team after these
ancillary labs have been obtained as the patient is stating that he wants to die,
and we will consult them for suicidal ideation.
(Tr. at 306-07.)
On September 19, 2009, Claimant was admitted to Mildred Mitchell-Bateman
Hospital, and wherein he remained a patient until his discharge on September 30, 2009.
(Tr. at 309-22.) In the admission summary, Patricia Woods, Psychologist, wrote:
The certification was completed in the CAMC ER. He was taken to the ER via
EMS after interactions with the police following violation of a restraining
order completed by the police. He was uncooperative with the EMS. He
reportedly demanded to leave AMA [Against Medical Advice] and became
physically aggressive and required physical/chemical restraints. According
to the certifying social worker, “He was crying. Stated he was suicidal.
Screaming, cursing.”...
Most recently Mr. Goodwin has been residing at his girlfriend’s, Sherry’s
home. He reported that they had been dating for only a few months. He
reported that after their recent break up he was leaving her home and fell.
When the EMS came after he had fallen and hurt his knees, he reported that
15

he stated, “I’d rather kill myself than go back to her.” He stated that this was
misunderstood.
Mr. Goodwin reported that approx. a year ago he fell through a friend’s porch
and sustained a head injury. He reported that he was treated at CAMC for the
injury and then discharged to the Men’s Shelter in Charleston due to being
homeless and having no income. He reported experiencing headaches since
that injury. He did not lose consciousness following the injury. He does not
experience seizures. He denied alcohol and drug use. He was positive for
cannabis at the time of admission.
MENTAL STATUS EXAMINATION:
Mr. Goodwin appears older than his stated age. He is of average height and
stocky build. His legs appear abnormally short in proportion to his torso.
His fingers were thick and clubbed on the ends. His coarse gray hair was long
and thinning. His beard was ungroomed. He appeared disheveled and
unkempt.
The patient was alert and oriented to person, place, time and situation. He
tended to intellectualize and repeatedly provided the names of persons he
had worked with at the WV Mental Health Consumer’s Association or at the
Disabled American Veteran’s Administration and that he had volunteered for
them but had never been a client. His speech was free of impediment but of
normal rate, volume and prosody. His mood was mildly dysphoric and his
affect was mood congruent. He denied abnormal perceptions. No overtly
delusional thought content was elicited. His recent and remote memories
were grossly intact. Intellectual functioning is estimated to be in the average
range. His insight is limited. His judgment is poor.
DIAGNOSTIC IMPRESSION:
Axis I:
R/O [rule out] Mood Disorder NOS
Cannabis Abuse
R/O Alcohol Abuse
Axis II:
Diagnosis Deferred
Axis III:
HTN, S/P Cholecystectomy, R/O TBI
Axis IV:
Homeless, recent break up with girlfriend
Axis V:
GAF [Global Assessment of Functioning] = 40 (current)
CONCLUSIONS AND RECOMMENDATIONS:
The reliability and completeness of Mr. Goodwin’s self-report is considered
to be limited. He tends to blame the treatment he received by EMS workers
and medications he received in the ER for his hostile and aggressive
behaviors. He was not forthcoming with information regarding drug/alcohol
use which may have contributed to his behaviors.
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Collateral information should be obtained to help clarify the patient’s
psychosocial history. A MICA [Mentally Impaired Chemically Addicted]
referral is recommended. Encourage patient to participate in on-unit
therapeutic activities. He does not appear to be at risk for suicide, assault or
elopement at this time.
(Tr. at 320-21.)
In admission notes, Mahmand Mohamed, M.D., opined Claimant’s GAF to be 35-40
and stated: “Aggression and impulsivity could interfere with the compliance with treatment.
The patient has limited insight which will make it hard for him to accept any treatment or
recommendation...ESTIMATED LENGTH OF STAY: One to two weeks depending upon the
observation by the treatment team on the unit.” (Tr. at 314-15.)
In the discharge summary from Mildred Mitchell-Bateman Hospital, Antonio R.
Diaz, M.D., stated:
DISCHARGE DIAGNOSES:
AXIS I.
Mood Disorder, NOS
Cannabis abuse
II.
None
III.
Hypertension
Dermatitis, NOS
IV.
Problem with primary support system
V.
Discharge GAF: 50
CONDITION OF PATIENT AT DISCHARGE: The patient was clinically stable
at time of discharge.
MENTAL STATUS EXAMINATION: Patient appeared older than his stated
age. Appeared slightly disheveled. Appropriate in his interaction with the
staff and other patients. Speech - linear and goal directed. Denied paranoia
or any delusional ideation. Denied hallucinations. Denied suicidal ideation.
Insight - partial; Judgment - fair...
HOSPITAL COURSE: Patient was not started on any psychotropic
medications because there were no clearcut indications for any. Patient had
been reiterating that he was just reacting to the situation with his girlfriend
and that there was “nothing wrong with me”. Patient was discharged on Sept.
30, 2009 with a mental state that was free of psychotic or severe affective
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symptoms.
(Tr. at 309-11.)
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 analyze the credibility of Claimant’s lay
witnesses, Joseph Edward Cunningham and Cheryl Fredrick, or to properly consider their
testimony regarding Claimant’s headaches, behavior, depression, and knee pain; and (2)
the ALJ failed to take into account Claimant’s repeatedly low GAF scores. (Pl.'s Br. at 5-8.)
The Commissioner’s Response
The Commissioner asserts that the ALJ’s decision is supported because substantial
evidence supports the RFC for unskilled work in a low stress work environment and (1)
Claimant’s lay witnesses were not acceptable medical sources pursuant to 20 C.F.R. 416.913
regarding Claimant’s medically complaints; and (2) the GAF scores were inconsistent with
the objective clinical findings in the record . (Def.’s Br. at 10-16.)
Analysis
Weighing Opinion Evidence
Claimant first argues that the ALJ failed to properly analyze the credibility of
Claimant’s lay witnesses, Joseph Cunningham and Cheryl Fredrick, or to properly consider
their testimony regarding Claimant’s headaches, behavior, depression, and knee pain. (Pl.'s
Br. at 5-8.) Claimant asserts that “the ALJ disregards the lay witness testimony on the sole
grounds that each is not a treating source. However, according to 20 C.F.R. 404.1513(e),
an ALJ must consider the observations by non-medical sources regarding how an
impairment affects claimant’s ability to work.” (Pl.'s Br. at 5.)
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The Commissioner argues that the ALJ considered the opinions of Joseph
Cunningham and Cheryl Fredrick regarding Claimant’s ability to work, but noted they “are
not acceptable medical sources pursuant to 20 C.F.R. 416.913 (Tr. 25-26). Therefore, no
weight was given to their opinions.” (Def.’s Br. at 14.) The Commissioner further noted that
the ALJ properly rejected the hypothetical questions by Claimant’s representative that were
based on limitations assessed by the lay witnesses. Id.
Claimant responded: “The importance of lay testimony in Social Security cases is
underscored by the myriad regulations and rulings devoted to that subject...Thus, in this
case, the ALJ’s offhand dismissal of the lay witness testimony is unacceptable.” (Pl.'s
Response Br. at 2-3.)
Every medical opinion received by the ALJ must be considered in accordance with
the factors set forth in 20 C.F.R. § 416.927(d) (2011). 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. § 416.927(d)(2).
Under § 416.927(d)(1), more weight is given to an examiner than to a non-examiner.
Section 416.927(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

416.927(d)(2)(I) states that the longer a treating source treats a claimant, the more weight
the source’s opinion will be given. Under § 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
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opinion. Sections 416.927(d)(3), (4), and (5) add the 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).
20 C.F.R. 416.913(d) (2011) states:
Other sources. In addition to evidence from the acceptable medical sources
listed in paragraph (a) of this section, we may also use evidence from other
sources to show the severity of your impairment(s) and how it affects your
ability to work or, if you are a child, how you typically function compared to
children your age who do not have impairments.
Per 20 C.F.R. § 416.913(d), an ALJ “may” consider evidence from “other sources” in
addition to evidence from the acceptable medical sources listed in paragraph (a) of the
section, in order to determine how a claimant’s ability to work is affected and if the
claimant is a child, how a claimant typically functions compared to children of the same age
who do not have impairments. Friends are listed as “other sources.”

20 C.F.R. §

416.913(d)(4).
In the subject case, the ALJ considered the testimony of Claimant’s friends, Joseph
Cunningham and Cheryl Fredrick, and reached these conclusions:
With regard to the opinion evidence, Joseph Edward Cunningham, testified
at the hearing noting that he once served as the claimant’s career support
specialist at the Kanawha County Wellness and Recovery Center, but
currently knew him as a friend. The witness testified that other than life
experience, he had no specified education for counseling, but reported he had
seen the claimant for a period of eighteen months to two years for anywhere
from fifteen minutes to a couple of hours during each session in his capacity
as career support specialist. Mr. Cunningham testified the claimant’s
memory was “not good.” He testified the claimant had helped develop some
computer information at the Wellness and Recovery Center. He reported the
claimant worked for about two weeks, then “totally forgot about what we were
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doing,” but indicated the information came back to him just a few days later.
Mr. Cunningham noted the claimant was “just bummed out.” He reported
the claimant could work on a task anywhere from an hour to three hours. Mr.
Cunningham noted the claimant kept a headache, but the pain varied. He
further testified he thought the claimant’s “knees hurt him a lot more than he
let on.” The undersigned has given some consideration to the testimony of
Mr. Cunningham. However, the witness is not an acceptable treating source
pursuant to 20 C.F.R. 404.1513, thus no weight is given to his opinions.
Also testifying at the hearing was the claimant’s fiancé Cheryl Fredrick. She
testified that the claimant could not walk more than a couple of blocks and
when he did, he was not able to “do anything the next day.” She reported the
claimant suffered from headaches daily and indicated he has no daily pattern,
suggesting he either stays up for days on end, or stays in bed. Ms. Fredrick
testified that the claimant’s ability to stay on task depended on his pain level.
The undersigned has taken the testimony of Ms. Fredrick into consideration.
However, the witness is not an acceptable treating source pursuant to 20
C.F.R. 404.1513 and therefore no weight is afforded her opinion.
(Tr. at 25-26.)
The undersigned finds that the ALJ did not err in his consideration of the testimony
of Claimant’s friends. The ALJ considered the discretionary testimony evidence and
decided to give it no weight, which was his prerogative. The ultimate decision about
disability rests with the Commissioner. 20 C.F.R. § 416.927(e)(1) (2011). The undersigned
also reviewed this opinion evidence and agrees with the ALJ that it had no persuasive value
whatsoever.
GAF
Claimant next argues that the ALJ did not take into account his low GAF scores:
“Goodwin was taken to Mildred Bateman Hospital on September 19, 2009, and at
admission his GAF score was 35-40. (Tr. 310) Upon discharge, his GAF was 50. (Tr. 310)
On September 22, 2009 physicians at Mildred Bateman Hospital determined that
Goodwin’s GAF at the time was 40. (Tr. 321)” (Pl.'s Br. at 6-7.)

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The Commissioner responds that
the 3 GAF scores were not consistent with the objective clinical findings in
the record. Significantly, the medical providers who assessed the GAF scores
ranging between 35 and 50 never opined that Plaintiff was disabled or had
functional limitations that precluded him from all work (Tr. 309-22). To the
contrary, the hospital psychiatrist noted that the reliability and completeness
of Plaintiff’s self-report was considered to be limited; Plaintiff tended to
blame the EMS workers and medications he received in the emergency room
for his hostile and aggressive behaviors; and that Plaintiff was not
forthcoming with information regarding drug/alcohol use which may have
contributed to his behaviors (Tr. 321). Although he assessed a GAF rating of
40 (Tr. 321), the psychiatrist did not deem it medically necessary to prescribe
any psychotropic medications (Tr. 311).
(Def.’s Br. at 13.)
Claimant responds that “the ALJ cannot simply ignore GAF scores.” (Pl.'s Response
Br. at 4.)
The undersigned finds that contrary to Claimant’s assertions, the ALJ did not
disregard the opinion evidence from Mildred Mitchell Bateman Hospital when considering
Claimant’s disability and functional capacity. Although he ALJ did not specifically note the
GAF, he clearly considered all of the hospital reports:
[T]he most recent records from September 18, 2009, revealed the claimant
became unresponsive while being arrested. While being transported to
CAMC, the claimant became agitated. The record reveals when the physician
began to enter the room the claimant was “already belligerent with the staff
trying to hit our staff and a security guard, and at that point he was being
restrained for his safety and ours” (Exhibit 14F, page 10). The claimant
reported he was “not sure” why he was in the hospital, but stated “he just
[wanted] to die” (Exhibit 14F, page 10). Of note, the record also indicates the
claimant had been to the emergency room earlier that same day and left
without being seen; cursing at the doctor and telling him not to do the
examination (Exhibit 14F, page 10).
The record reveals the claimant was sent to Mildred Mitchell Bateman
Hospital on September 19, 2009 and remained there until his discharge on
September 30, 2009 (Exhibit 15F). The claimant reported “I don’t have
anything wrong with me” (Exhibit 15F, page 2). He denied suicidal or
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homicidal thoughts and depression or psychotic symptoms (Exhibit 15F, page
3). A urine drug screen did prove positive for cannabis. However, during the
course of treatment no psychotropic medications were used as there was no
specific indication for any. The claimant was discharged “with a mental state
that was free of psychotic or severe affective symptoms” (Exhibit 15F, page 3).
(Tr. at 23-24.)
A GAF score does not reflect an individual’s physical capacity to work but may
impact the person’s ability to function in a work place or social setting. The Global
Assessment of Functioning (GAF) is a numeric scale (0 through 100) used by mental health
clinicians and physicians to rate subjectively the social, occupational, and psychological
functioning of adults. In the subject claim, Claimant’s GAF scores ranged from 40 to 651.
The ALJ noted that while Claimant was a patient at “Mildred Mitchell Bateman
Hospital...during the course of treatment no psychotropic medications were used as there
was no specific indication for any. The claimant was discharged “with a mental state that
was free of psychotic or severe affective symptoms.” (Tr. at 24.) Clearly, the description at
discharge does not describe severe symptoms despite a GAF rating of 50. (Tr. at 310-11.)
The ALJ considered Claimant’s mental functioning and in his hypothetical to the vocational

61 - 70 Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in
social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but
generally functioning pretty well, has some meaningful interpersonal relationships.
1

51 - 60 Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers).
41 - 50 Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).
31 - 40 Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment,
thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work).
American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. (Text
Revision) 2000).

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expert restricted Claimant to “low-stress...unskilled...sedentary and light... exertional level”
work, wherein the VE identified three jobs in each category that Claimant could perform.
(Tr. at 59-61.) It is further observed that the record shows that Claimant was positive for
cannabis abuse at his admission to the hospital, which may have contributed to his
behaviors and low GAF score. (Tr. at 310, 320.)
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 copies of this Order to all counsel of
record.
ENTER: September 27, 2012

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