Donahue v. Astrue
Filing
20
MEMORANDUM OPINION by judgment order entered this date, directing that 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 9/19/2012. (cc: attys) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
DENISE DAWN DONAHUE,
Plaintiff,
v.
CASE NO. 2:11-CV-00644
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 applications for disability 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, Denise Dawn Donahue (hereinafter referred to as “Claimant”), filed
applications for SSI and DIB on June 27, 2008, alleging disability as of May 1, 2007, due
to emphysema, right knee pain, and chest pain. (Tr. at 16, 191-99, 200-02, 234-40, 266-72,
296-300.) The claims were denied initially and upon reconsideration. (Tr. at 16, 100-04,
105-09, 112-14, 115-17.) On January 16, 2009, Claimant requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. at 118-19.) The hearing was held on June 23, 2009
before the Honorable Valerie A. Bawolek. (Tr. at 28-54, 127, 132.) A supplemental hearing
was held on February 23, 2010 before Judge Bawolek. (Tr. at 55-93, 123, 164.) By decision
dated April 29, 2010, the ALJ determined that Claimant was not entitled to benefits. (Tr.
at 16-27.) The ALJ’s decision became the final decision of the Commissioner on August 26,
2011, when the Appeals Council denied Claimant’s request for review. (Tr. at 1-5.) On
September 20, 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 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. 20 C.F.R. §§ 404.1520, 416.920 (2002). If an individual
is found "not disabled" at any step, further inquiry is unnecessary. Id. §§ 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. Id. §§ 404.1520(d), 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. §§
404.1520(e), 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 burden then shifts
to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads
2
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. §§
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 met the insured status requirements through December 31, 2010 and has not
engaged in substantial gainful activity since the alleged onset date, May 1, 2007. (Tr. at 18.)
Under the second inquiry, the ALJ found that Claimant suffers from the severe
impairments of degenerative disc disease, degenerative disc disease of the right knee,
chronic obstructive pulmonary disease [COPD], depressive disorder, personality disorder,
and polysubstance abuse. (Tr. at 19-20.) 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 20-21.) The ALJ then found that Claimant has a residual functional capacity for
light work, reduced by nonexertional limitations. (Tr. at 21-25.) Claimant has no past
relevant work. (Tr. at 26.) Nevertheless, the ALJ concluded that Claimant could perform
jobs such as cafeteria attendant, simple cashier, and sales attendant which exist in
significant numbers in the national economy. (Tr. at 26-27.) On this basis, benefits were
denied. (Tr. at 27.)
Scope of Review
The sole issue before this court is whether the final decision of the Commissioner
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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. 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 48 years old at the time of the administrative hearing. (Tr. at 32.) She
has a GED and at the time of the hearing was enrolled in her final semester to obtain a
Medical Coding Degree or Certificate from Garnet Career Center with a 3.8 grade point
average [GPA]. (Tr. at 33, 53, 308-09.) In the past, she worked as a janitor for
approximately seven years, and briefly at various times as a server, caregiver, cashier, and
pharmacy warehouse worker. (Tr. at 236, 239, 246-53.)
The Medical Record
The court has reviewed all evidence of record, including the medical evidence of
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record, and will summarize it below.
Physical Health Evidence
Records indicate David Santrock, M.D., treated Claimant from January 17, 1991
through December 13, 1994 for two right knee injuries, the first occurring on May 22, 1990
when she fell, and the second occurring on September 24, 1992 when she struck her right
knee while working in a warehouse. (Tr. at 324-37.) On September 9, 1994, he performed
a right knee arthroscopy. (Tr. at 326-27.) On the final office note dated December 13, 1994,
Dr. Santrock stated that “with respect to her knee problem...[I] have exhausted all measures
that I am aware of that would be beneficial.” (Tr. at 324.) An office notation dated January
24, 1995 indicates: “Letter from Comp indicating Dr. Loimil is assuming her care.” Id.
Records indicate Luis Loimil, M.D., treated Claimant from January 19, 1995 to July
17, 1996 for right knee pain. (Tr. at 339-45.) On November 9, 1995, Dr. Loimil performed
an arthroscopic examination of her right knee. (Tr. at 341.) On January 31, 1996, he noted:
“She is complaining bitterly of pain...I feel her complaints are totally out of proportion to
the clinical findings and I would like to request that she be referred to Dr. Mukkamala for
an IME [Independent Medical Examination] vs. PPI [Permanent Partial Impairment]
evaluation.” (Tr. at 339.)
Records indicate Claimant was treated at Thomas Memorial Hospital Emergency
Room on 12 occasions from April 10, 2001 to November 17, 2008. (Tr. at 346-82, 822.) On
the first occasion, April 10, 2001, Claimant “presented to the emergency room [ER] seeking
help for drug and alcohol problems as well as severe depression. She admits to using drugs
ever since she was a teenager. Patient states that using $100 to $800 a day of cocaine.”
(Tr. at 379.) The fifth through tenth visits to the ER were for right knee pain, right-sided
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low back pain, and headaches. (Tr. at 362-76.) On June 24, 2002, Claimant complained
of right-sided low back pain due to a fall “four days ago at a grocery store.” (Tr. at 373.)
The final four ER visits (May 3, 2004, November 8, 2004, November 28, 2006, December
4, 2006) were also due to alleged falls wherein she injured her left arm and back. (Tr. at
347-62.) An x-ray taken at Thomas Memorial Hospital on November 17, 2008, shows: “The
heart is normal in size. The lungs are clear. The pleural spaces are clear. Spondylosis and
kyphosis of the thoracic spine is seen. There is no acute process identified.” (Tr. at 822,
898.)
Records indicate Claimant was treated at St. Francis Hospital on seven occasions:
May 13, 2006 for “otitis externa” also known as “swimmer’s ear”; November 8, 2006 for
sinusitis; March 22, 2007 for a “fall down stairs right knee hurting”; August 1, 2007 for leftsided chest pain; October 14, 2007 for swimmer’s ear; and January 19, 2009 for bronchitis.
(Tr. at 384, 400, 421, 432, 434, 859-70.)
Records indicate Claimant was treated at Charleston Area Medical Center [CAMC],
primarily at the Emergency Department, on 53 occasions from July 4, 1995 to August 20,
2009 (Tr. at 445-803, 823-26, 993-1042): July 4, 1995 for abdominal pain (Tr. at 800);
July 6, 1995 for abdominal pain (Tr. at 802); August 11, 1995 for dysmenorrhea (painful
menstruation) (Tr. at 793); November 9, 1995 for right knee arthroscopy (791); February
18, 1997 for jaw pain (Tr. at 788); September 8, 1998 for lower abdominal pain (Tr. at 786);
October 22, 1998 for left sided pain (Tr. 785); December 25, 1998 for back pain and right
jaw pain (Tr. at 780); March 1, 1999 for bilateral salpingo-oophorectomy (removal of
ovaries) and appendectomy (Tr. 773-74); May 24, 1999 for ventral hernia (Tr. at 763); May
31, 1999 for hernia surgery (Tr. at 750); June 23, 1999 for hernia surgery drainage (Tr. at
6
744); July 26, 1999 for abdominal pain (Tr. at 736); August 31, 1999 for repair of incisional
hernia (Tr. at 734); January 16, 2000 for unrestrained motor vehicle accident with frontal
headache and right jaw and lip pain (Tr. at 718); June 26, 2000 for toothache (Tr. at 705);
October 10, 2000 for toothache (Tr. at 703); October 29, 2000 for tooth pain (Tr. at 701);
December 9, 2000 for chest pain (Tr. at 688); April 6, 2001 for lower abdominal pain (Tr.
at 682); June 19, 2001 for chest discomfort (Tr. at 661); December 8, 2001 for “right
lumbar pain which began after a fall yesterday” (Tr. at 653); June 19, 2002 for “fell on a wet
floor at the store” (Tr. at 635); July 2, 2002 for “I fell at the supermarket” (Tr. 632);
September 16, 2002 for right knee pain (Tr. at 629); November 16, 2002 for right knee pain
(Tr. at 626); January 5, 2003 for right knee pain (Tr. at 623); March 22, 2003 for right knee
pain (Tr. at 620); August 8, 2003 for bilateral lower quadrant pain (Tr. at 602); August 31,
2003 for withdrawal symptoms from a “long standing history of IV opiate abuse” (Tr. at
595); September 13, 2003 for headache (Tr. at 587); February 4, 2004 for headache with
photophobia (Tr. at 582); April 16, 2004 for headache and photophobia (Tr. at 575); April
19, 2004 for back and rib pain following a fall (Tr. at 571); October 28, 2004 for right back
pain following a fall (Tr. at 566); October 25, 2005 for right-sided rib pain (Tr. at 562);
February 20, 2006 for left foot pain due to a fall (Tr. at 446, 551); September 29, 2006 for
right ankle pain and cough (Tr. at 450, 537); November 7, 2006 for right jaw pain (Tr. at
462, 534); March 27, 2007 for bilateral knee pain and low back pain due to a fall (Tr. at 465,
529); September 18, 2007 for left ear pain (Tr. at 470, 518); September 25, 2007 for earache
(Tr. at 473, 513); October 16, 2007 for earache, sore throat and fever (Tr. at 477, 509);
January 31, 2008 for bilateral heel pain (Tr. at 480, 505); July 20, 2008 for right middle
finger pain due to a fall (Tr. at 526); June 16, 2008 for low back pain (Tr. at 483, 498);
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December 15, 2008 for sore throat (Tr. 824); May 5, 2009 for right buttock and back pain
(Tr. at 994); May 16, 2009 for low back and right leg pain (Tr. at 998, 1027); May 31, 2009
for back pain (Tr. at 1004); June 21, 2009 for back pain (Tr. at 1017); July 23, 2009 for back
pain (Tr. at 1021); and August 20, 2009 for back pain (Tr. at 1024).
Records from Rite Aid #1582 show Claimant was prescribed the following
medications from May 1, 2007 to June 16, 2009: Oxycodone, Hydrocodone, Symbicort,
Methylprednisolone, Lorazepam, Doxycycline, Penicillin, and Acetaminophen - Codeine
#3. (Tr. at 911-13.)
On August 14, 2008, a State agency medical source completed an internal medicine
examination of Claimant. (Tr. at 804-12.) The examiner, Kip Beard, M.D., concluded:
IMPRESSION:
1.
Possible chronic bronchitis with possible asthmatic component.
2.
Right knee internal derangement, status post arthroscopic surgery
with possible osteoarthritis.
SUMMARY: The claimant is a 47 year old female with a history of increasing
breathing trouble over the last 2 ½ years. She states a chest x-ray and an
emergency room visit showed evidence of emphysema. She does have
significant smoking history. Examination of the lungs today revealed some
mildly distant breath sounds. I did not hear wheezes, rales, or rhonchi.
There did seem to be a mild degree of dyspnea following exertion. Pulmonary
spirometry was interpreted as normal today.
(Tr. at 808.)
On September 12, 2008, a State agency medical source completed a Physical
Residual Functional Capacity Assessment [PRFCA]. (Tr. at 813-20.) The evaluator, Rogelio
Lim, M.D., found that Claimant could perform medium work, perform all postural activities
frequently save for climbing ladder/rope/scaffolds, which she could do occasionally. (Tr.
at 815.) Dr. Lim opined that Claimant had no manipulative, visual, communicative, or
8
environmental limitations, save to avoid concentrated exposure to “vibration” and “fumes,
odors, dusts, gases, poor ventilation, etc.” (Tr. at 816-17.)
Dr. Lim commented: “OA
[Osteoarthritis] allegations not credible PFT [Pulmonary Function Test] normal right knee
pain but x-ray revealed mild arthrosis. Right knee pain somewhat exaggerated. RFC
[Residual Functional Capacity] made on the basis of medical evidence.” (Tr. at 820.)
Records show that Claimant was treated by Kevin Eggleston, M.D. on November 17,
2008 and December 23, 2008 for her breathing difficulty concerns. (Tr. at 887-909.) Dr.
Eggleston’s initial notes indicate that Claimant has smoked two packs of cigarettes per day
for thirty years. (Tr. at 904.) He notes that his plan is to refer Claimant “to cardiology for
a stress test. Encourage to quit smoking and give script for nicotine patches. Give sample
of symbiort 80/4.5 for possible asthma.” (Tr. at 901.)
On December 8, 2008, Dr.
Eggleston states: “Suspect she is having panic attacks. Start her on lexapro and only take
the ativan at night. Told patient she needs to find a PCP [primary care provider]. Follow
up in 4 months.” (Tr. at 890.) On May 21, 2009, Dr. Eggleston stated in a form titled
“Emphysema Questionnaire” that his diagnosis was “COPD, emphysema, chronic low back
pain.” (Tr. at 908.) He opined that Claimant could walk two city blocks without rest, would
need unscheduled breaks during an 8 hour working day, and would require the use of
“inhalers” throughout the day. (Tr. at 909.)
On December 3, 2008, a State agency medical source attempted to complete a
Physical Residual Functional Capacity Assessment [PRFCA]. (Tr. at 827-34.) The
evaluator, Uma Reddy, M.D. stated: “This claimant alleges worsening of her symptoms, but
no recent ADLs are available. Insufficient evidence to evaluate this claim fully.” (Tr. at
832.) “Forms not returned after follow-ups and third party contact, please advise
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insufficient evidence.” (Tr. at 834.)
Records indicate that Claimant was treated by Scott Duffy, M.D. on December 8,
2008, December 16, 2008, and January 13, 2009 upon referral by Kevin Eggleston, M.D.
regarding Claimant’s complaints of chest discomfort. (Tr. at 835-57.) On December 16,
2008, Dr. Duffy stated: “Negative treadmill stress test, No arrythmias, Positive chest pain,
which resolved during recovery, Decreased functional capacity, Cardiolite [stress test] to
follow.” (Tr. at 841.) Dr. Duffy concluded in the January 13, 2009 report: “Stress [test] is
normal. She is cutting back on smoking, needs to quit. Echo looks OK. Follow up in one
year with periodic stress due to family history and tobacco.” (Tr. at 838.)
On May 16, 2009, Claimant was treated at Family Medical Center for a “[f]all with
back pain, numbness in legs.” (Tr. at 990-92.) Stephen M. Elksnis, M.D., radiologist,
reviewed x-rays of Claimant’s thoracic spine and lumbar spine and concluded:
A total of 5 images of the thoracic spine are submitted. Vertebral bodies are
normal in height. There is no evidence for fracture or paravertebral mass.
IMPRESSION: Normal radiographic examination of the thoracic spine. No
evidence for acute bony injury of the thoracic spine.
*
*
*
Vetebral bodies are normal in height. There are small marginal osteophytes
at the L3-4 and L4-5 levels due to early degenerative change. There is no
evidence for fracture or spondylolisthesis.
IMPRESSION: Early degenerative changes at the L3-4 intervertebral disc and
the facet joints at the L5-S1 level. There is no evidence for acute bony injury
of the lumbar spine.
(Tr. at 990-91.)
On July 13, 2009, Darshan Dave, M.D., Neurology and Headache Clinic, stated that
he was “asked to see this patient in consultation by DR” due to Claimant’s “Chief
Complaint: back pain...present since last 3 months with gradual worsening...No weakness.
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No
incontinence...back
pain
radiating
to
bilateral
lower
extremities
with
parensthesia...based on symptoms and examination imaging studies are required to r/o
[rule out] structural abnormalities.” (Tr. at 1038-39.) On that same date, Dr. Dave
performed an Electromyography/Nerve Conduction Study of Upper and Lower Extremities
and reported that it was a “normal test.”
Mental Health Evidence
Records indicate Claimant was treated at Prestera Center for Mental Health Services,
Addictions’s Recovery Center, [“Prestera”] from June 29, 2006 to July 27, 2006 [detox and
residential treatment] for dependence on cocaine, opioids, sedatives, and alcohol. (Tr. at
923-89.) The Admission Assessment states: “This client reports that she has pending
charges for prostitution, soliciting and simple drug charges with assault on a police officer.”
(Tr. at 966.) The discharge summary form states:
Denise appears stable, mood and affect appropriate. Denise denies any SI/HI
[suicidal ideation/homicidal ideation] at this time. Denise has successfully
completed the Park West program, along with goals and objectives on her
MISP...
Denise plans to continue treatment through outpatient services offered at
Parc East, and plans to attend AA/NA [Alcoholic Anonymous/Narcotics
Anonymous] meetings.
(Tr. at 923.)
On January 29, 2009, Sheila E. Kelly, M.A., licensed psychologist, provided a report
of psychological evaluation upon referral by Claimant’s representative. (Tr. at 872-86.) Ms.
Kelly concluded:
MENTAL STATUS EXAMINATION:
This is a tall, thin, white female dressed in jeans and a sweater. She looks at
least fifteen years older than her stated age due to a long history of substance
abuse including alcohol, crack cocaine, and any other drugs that were
11
available. She is also very anxious and depressed although there are some
histrionics as well. She is manipulative, very dependent, and passiveaggressive. She was in tears throughout the interview, using almost an entire
box of Kleenex but some of the tears appeared to be designed to attempt to
manipulate the examiner.
Sleep is disturbed by self-report. She describes her appetite as “I go in little
spurts, sometimes I just eat and eat and eat”. Weight is stable.
Mood is depressed and anxious. She has no history of suicide attempts but
claims to experience significant suicidal ideation without intent.
Attention, concentration, and short-term memory are poor by self-report...
*
*
*
RESIDUAL FUNCTIONAL CAPACITY:
Activities of Daily Living:
Since July, Mrs. Donahue has been living in subsidized housing for the
elderly and disabled. Prior to that, she had been the past four years living
with her younger daughter. She maintains her own household and is
currently participating in a work training program at Garnet Career Center.
She participates in the work training program in order to obtain PELL grant
money which she uses to support herself.
Mrs. Donahue has a long history of polysubstance abuse with particular
dependence on alcohol and crack cocaine. She continues to have episodes of
substance abuse although they are relatively rare by self-report.
She is facing a number of court charges which have accumulated over the
years and involve simple possession, solicitation for prostitution, and a
variety of traffic violations. Over the years, she has simply ignored
summonses to appear in court but finally a habeas was issued for her arrest.
She is pending resolution of those charges at the present time. As a result of
the charges, she lost her driver’s license some time ago. She relies on her
family for transportation.
Social Functioning:
All of Mrs. Donahue’s past friendships have been with fellow substance
abusers. She has been through at least two residential substance abuse
treatment programs and has gradually seemingly gained some control over
her substance abuse but as a result has become rather socially isolated. She
relies heavily on her sister in Tennessee and her three children for emotional,
12
moral, and financial support.
Concentration, Persistence, and Pace:
Mrs. Donahue claims to have significant problems with attention and
concentration. She does appear to have difficulties finishing tasks she begins
and significant problems with authority. She is not reliable or responsible
and her attendance has reached the point in her training program that she is
about to be discharged from it, thereby losing her grant money and her
source of financial support.
Deterioration in Work or Work-like Settings:
Mrs. Donahue has worked off and on over the years. Because she is
seemingly intelligent, she has no difficulty finding jobs and obtaining
responsible positions but her substance abuse and personality pathology
make her very unreliable and at times irresponsible. As a result, she loses her
positions. She has been married or had a number of boyfriends, all of whom
were substance abusers who eventually ended up in the prison system. She
can be expected to have problems with attendance, reliability, judgment,
relationships with her peers, and relationships with supervisors.
Mrs. Donahue should have a payee established for her benefit should she be
determined to be disabled. Primarily this is due to her history of poor
judgment, poor impulse control, and substance abuse.
DIAGNOSTIC IMPRESSION:
Axis I
Generalized Anxiety Disorder
Depressive Disorder, Not Otherwise Specified [NOS]
Alcohol Dependence, In Remission by Self-Report
Cocaine Dependence, In Remission by Self-Report
Polysubstance Abuse, In Remission by Self-Report
Axis II
Personality Disorder, NOS, with Histrionic, Dependent, PassiveAggressive, Borderline Features
Knee Pain (I have no medical records at the time of this evaluation)
Axis III
(Tr. at 877-80.)
On January 29, 2009, Ms. Kelly completed a “check-mark” form regarding
Claimant’s psychological limitations. (Tr. at 884-86.) She marked “Not Limited” in the
ability to: remember work-like procedures; understand and remember very short and
simple instructions; carry out very short and simple instructions; sustain an ordinary
13
routine without special supervision; ability to ask simple questions or request assistance;
respond appropriately to changes in a routine work setting; be aware of normal hazards and
take appropriate precautions; travel in unfamiliar places or use public transportation. (Tr.
at 884-85.) She marked “Slightly Limited” in the ability to understand and remember
detailed instructions and to carry out detailed instructions. Id. She marked “Moderately
Limited” in the ability to maintain attention for extended periods; work in coordination or
proximity to others without being unduly distracted by them; make simple work-related
decision; complete a normal work day and work week without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; ability to interact appropriately with the
general public; get along with co-workers or peers without unduly distracting them or
exhibit behavioral extremes, and maintain socially appropriate behavior and to adhere to
basic standards of neatness and cleanliness; and set realistic goals or make plans
independently of others. (Tr. at 884-86.)
She marked that Claimant was “Markedly
Limited” in the ability to maintain regular attendance and be punctual within customary
tolerances; accept instructions and respond appropriately to criticism from supervisors.
Id. Ms. Kelly responded “Not clear [due to] [s]ignificant personality pathology” to the
question: “If this individual has a substance abuse problem, would he/she still be disabled
apart from her substance abuse. (Tr. at 886.)
On July 22, 2009, Kelly Robinson, M.A., Licensed Psychologist, provided a
psychological evaluation of Claimant. (Tr. at 914-19.) Ms. Robinson stated that Claimant
“receives no treatment” and “reports no mental health treatment” history. (Tr. at 914-15.)
The results of Claimant’s Mental Status Examination [MSE] were:
14
Orientation - She was alert throughout the evaluation. She was oriented to
person, place, time and date.
Mood - Observed mood was anxious.
Affect - Affect was broad and reactive.
Thought Processes - Thought processes appeared logical and coherent.
Thought Content - There was no indication of delusions, obsessive thoughts
or compulsive behaviors.
Perceptual - She reports no unusual perceptual experiences.
Insight - Insight was fair.
Judgment - Within normal limits based on her response to the finding the
letter question. She stated “pick it up and put it in a mailbox.”
Suicidal/Homicidal Ideation - She denies suicidal and homicidal ideation.
Immediate Memory - Immediate memory was within normal limits. She
immediately recalled 4 of 4 items.
Recent Memory - Recent memory was within normal limits. She recalled 3
of 4 items after 30 minutes.
Remote Memory - Remote memory was within normal limits based on ability
to provide background information.
Concentration - Concentration was within normal limits based on her score
of nine on the Digit Span subtest of the WAIS-III.
Psychomotor Behavior - Characterized by psychomotor agitation.
*
*
*
DIAGNOSTIC IMPRESSION
AXIS I
AXIS II
AXIS III
296.32
300.02
304.80
Major Depressive Disorder, Recurrent, Moderate
Generalized Anxiety Disorder
Polysubstance Dependence, In Remission - Per
Client Report
303.90
Alcohol Dependence, In Remission - Per Client
V71.09
No Diagnosis
By self-report: COPD and back and right knee problems
*
*
*
DAILY ACTIVITIES
Typical Day: Ms. Donahue goes to bed at no specific time and gets up at
10:30 am. She describes her typical day as “getting up, watch a little bit of tv,
I read, lately, I’ll read some of my book, take a bath, eat something, I don’t do
anything and when I do something, I get really depressed cause I am
breathing heavier, I would just like to be able to do something.
Activities:
Daily - makes the bed, watches tv, takes her medications, eats, takes a bath,
15
reads in her novel, talks to her children and sister on the phone and goes to
bed
Weekly - visits with her children and grandchildren and goes to the grocery
store with her daughter or a friend. She states “I just go straight to what I got
to get and get out, I don’t like to shop around.”
Monthly - could report no monthly activities
Hobbies/Interests: None.
SOCIAL FUNCTIONING
During the evaluation, social functioning was mildly deficient based on her
interaction with the examiner and the staff.
CONCENTRATION
Attention/concentration were within normal limits based on her score of nine
on the Digit Span subtest of the WAIS-III.
PERSISTENCE
Persistence was within normal limits based on the MSE.
PACE
Pace was mildly deficient based on the MSE.
CAPABILITY TO MANAGE BENEFITS
Ms. Donahue appears capable to manage any benefits she might receive.
(Tr. at 916-19.)
On July 22, 2009, Ms. Robinson also completed a check-mark form titled “Medical
Source Statement of Ability to do Work-Related Activities (Mental). (Tr. at 920-22.) Ms.
Robinson opined that Claimant’s restriction was “mild” regarding her ability to understand
and remember simple instructions, carry out simple instructions, and make judgments on
complex work-related decisions. (Tr. at 920.) She opined that Claimant’s restriction was
“moderate” regarding her ability to make judgments on complex work-related decisions and
16
interact appropriately with co-workers. (Tr. at 920-21.) She checked that Claimant’s
restriction was “marked” regarding her ability to carry out complex instructions, make
judgments on complex work-related decisions, interact appropriately with the public and
supervisors, and to respond appropriately to usual work situations and to changes in a
routine work setting.
Id. Ms. Robinson stated that Claimant’s diagnosis of Major
Depressive Disorder and Generalized Anxiety Disorder were the factors that supported her
assessment. Id. She responded “No” to the question: “Are any other capabilities affected
by the impairment?” (Tr. at 921.)
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 did not consider limitations imposed by Claimant’s severe
mental impairments; (2) the ALJ did not properly analyze the materiality of Claimant’s
substance abuse and her credibility; (3) the ALJ did not properly weigh the opinion of
psychologist Sheila Kelly, an examining mental health expert; (4) the ALJ did not apply the
two-pronged treating physician formula to Dr. Eggleston’s opinion; (5) the ALJ did not
weigh the testimony of the medical expert William Phelps; and (6) the ALJ improperly
rejected Generalized Anxiety Disorder as a severe impairment because Claimant had no
documented panic attacks. (Pl.'s Br. at 10-23.)
The Commissioner’s Response
The Commissioner responds that substantial evidence supports the ALJ’s finding
that Claimant was not disabled under the Social Security Act because (1) the ALJ did not
err in her consideration of Claimant’s substance abuse history and her intellectual
functioning in evaluating her mental condition; (2) the ALJ took into account Claimant’s
17
mental impairments when determining her residual functional capacity [RFC] and her
credibility; (3) the ALJ properly weighed the opinion of Ms. Kelly; (4) the ALJ properly
considered the opinion of Mr. Phelps; (5) the ALJ properly considered the opinions of Dr.
Eggleston; and (6) the ALJ properly considered Claimant’s anxiety in evaluating her RFC.
(Def.’s Br. at 16-26.)
Analysis
Mental Health Status
Claimant first argues that the ALJ “failed to account for all of Donahue’s mental
limitations in the hypothetical proposed to the vocational expert.”
(Pl.'s Br. at 10.)
Claimant asserts:
The limitations offered by the ALJ in her hypothetical, which precluded
detailed or complex work, target Donahue’s intellectual capacity, not the
limitations imposed by her depressive disorder and personality disorder...
In this instance, the hypothetical adopted by the ALJ fails to take into account
Donahue’s deficiencies in social functioning...
Moreover, there exists a disconnect between the ALJ’s finding that Donahue
suffers from a personality disorder and depressive disorder and the
limitations imposed in the hypothetical that Donahue cannot perform
detailed or complex work...
(Pl.'s Br. at 11-12.)
The Commission responds that
Plaintiff raises a series of spurious claims regarding the ALJ’s mental
evaluation (Pl.'s Br. at 10-19, 21-23)...
For example, Plaintiff argues that the ALJ’s restriction addressed her
intellectual capacity and did not take into account her moderate limitation in
concentration, persistence, or pace (Pl.'s Br. at 10-12). Plaintiff cites to no
evidence that supports her claim (Pl.'s Br. at 11)...
Though Plaintiff argues, further, that she had a restriction in social
18
functioning (Pl.'s Br. at 12, 16-17), by her own admission, she had no
problems getting along with authority figures, family, friends, neighbors, and
others (Tr. 259-60, 277-78). Plaintiff submitted no non-medical evidence
that documented any work-impeding impairment in social functioning, such
as a history of altercations and when she had the funds, she attended medical
coding training and participated in an internship program doing clerical tasks
(Tr. 872-74, 876, 879). The ALJ did not err in giving, in part, weight to the
information that Plaintiff provided.
(Def.’s Br. at 16-17.)
Claimant argues in a response brief that “if the effects of her substance abuse on her
ability to function can not be separated from the effects of her mental impairments, a fully
favorable decision is warranted.” (Def.’s Response Br. at 3.) “In light of the above, the
ALJ’s RFC and hypothetical to the VE was fatally defective.” (Def.’s Response Br. at 5.)
At steps four and five of the sequential analysis, the ALJ must determine the
claimant’s residual functional capacity (RFC) for substantial gainful activity.
“RFC
represents the most that an individual can do despite his or her limitations or restrictions.”
See Social Security Ruling 96-8p, 61 Fed. Reg. 34474, 34476 (1996). Looking at all the
relevant evidence, the ALJ must consider the claimant’s ability to meet the physical, mental,
sensory and other demands of any job. 20 C.F.R. §§ 404.1545(a) and 416.945(a) (2010).
“This assessment of your remaining capacity for work is not a decision on whether you are
disabled, but is used as the basis for determining the particular types of work you may be
able to do despite your impairment(s).” Id. “In determining the claimant's residual
functional capacity, the ALJ has a duty to establish, by competent medical evidence, the
physical and mental activity that the claimant can perform in a work setting, after giving
appropriate consideration to all of her impairments.” Ostronski v. Chater, 94 F.3d 413, 418
(8th Cir. 1996).
19
The RFC determination is an issue reserved to the Commissioner. See 20 C.F.R. §§
404.1527(e)(2), 416.927(e)(2) (2010).
In determining what a claimant can do despite his limitations,
the SSA must consider the entire record, including all relevant
medical and nonmedical evidence, such as a claimant's own
statement of what he or she is able or unable to do. That is, the
SSA need not accept only physicians' opinions. In fact, if
conflicting medical evidence is present, the SSA has the
responsibility of resolving the conflict.
Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995) (citations omitted).
To be relevant or helpful, a vocational expert’s opinion must be based upon
consideration of all evidence of record, and it must be in response to a hypothetical
question which fairly sets out all of the claimant’s impairments. Walker v. Bowen, 889 F.2d
47, 51 (4th Cir. 1989). “[I]t is difficult to see how a vocational expert can be of any
assistance if he is not familiar with the particular claimant’s impairments and abilities -presumably, he must study the evidence of record to reach the necessary level of
familiarity.” Id. at 51. Nevertheless, while questions posed to the vocational expert must
fairly set out all of claimant’s impairments, the questions need only reflect those
impairments that are supported by the record. See Chrupcala v. Heckler, 829 F.2d 1269,
1276 (3d Cir. 1987).
Additionally, the hypothetical question may omit non-severe
impairments, but must include those which the ALJ finds to be severe. Benenate v.
Schweiker, 719 F.2d 291, 292 (8th Cir. 1983).
The ALJ found Claimant to have the following severe impairments: degenerative disc
disease, degenerative joint disease of the right knee, chronic obstructive pulmonary disease
(COPD), depressive disorder, personality disorder, and polysubstance abuse. (Tr. at 19.)
Regarding residual functional capacity [RFC], the ALJ concluded
20
After consideration of the entire record, the undersigned finds that the
claimant has the RFC to perform light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b) except she can never climb ladders, ropes, or
scaffolds; she can only occasionally climb ramps or stairs; she can
occasionally perform balancing, stooping, crouching, kneeling, or crawling;
she must avoid pulmonary irritants, temperature extremes, and hazards such
as moving machinery; and she cannot perform detailed or complex work.
In making this finding, the undersigned has considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence based on 20 C.F.R.
§§ 404.1529 and 416.929 and SSRs 96-4p and 96-7p. The undersigned has
also considered opinion evidence in accordance with 20 C.F.R. §§ 404.1527
and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
(Tr. at 21.)
With regard to mental impairments, the record first indicates that in January
2009 psychologist Sheila Emerson Kelly, M.A., diagnosed the claimant with
depressive disorder NOS and personality disorder NOS with histrionic,
dependent, passive-aggressive, and borderline features (Exhibit 14F). These
diagnoses were partly attributed to the claimant’s valid test results...MMPI2...MCMI-III. Additionally, psychologist Kelly noted the claimant exhibited
depressed and anxious mood while attention, concentration, and short-term
memory were poor by the claimant’s report. The findings regarding
depressive symptoms are consistent with the more recent evaluation by
consultative examiner Kelly Robinson, M.A., who similarly diagnosed the
claimant with moderate recurrent major depressive disorder (Exhibit 18F).
Ms. Robinson noted the claimant’s report of depressed mood, difficulty
concentrating, varied appetite, sleep difficulty, diminished interest in
activities, crying spells, and feelings of worthlessness.
On the other hand, Ms. Kelly noted that some of the claimant’s copious tears
during the interview appeared designed to attempt to manipulation of the
examiner (Exhibit 14F). Meanwhile, Ms. Robinson reported the claimant’s
psychological test results were invalid, possibly indicating lack of cooperation
or exaggeration of symptoms (Exhibit 18F). Additionally, psychologist
Robinson noted the claimant exhibited several normal findings, including
normal orientation; broad and reactive affect; logical and coherent thought
processes; absence of delusions, obsessive thoughts, or compulsive behaviors;
normal judgment; normal immediate, recent, and remote memory; and
normal concentration.
In fact, the claimant’s most significant psychological impairment appears to
be her long history of polysubstance abuse. In this regard, the record shows
21
the claimant presented to the emergency room in April 2001 requesting help
with her addictions (Exhibit 3F). At that time, the claimant admitted using
alcohol, marijuana, and other substances, including $100 - $800 per day of
crack cocaine. Accordingly, the claimant was diagnosed with polysubstance
dependence.
Thereafter, the evidence suggests the claimant continued to abuse substances
over the years. Despite requesting substance abuse assistance as described
above in 2001, the claimant reported to psychologist Robinson as well as in
her testimony that she again entered a drug rehabilitation program in 2003
or 2004 (Exhibit 18F). The claimant then completed another detoxification
program in July 2006 (Exhibit 19F). At the time, she was diagnosed with
cocaine dependence, opiate dependence, sedative dependence, and alcohol
dependence. She completed the 28-day program but in September 2006 she
was again diagnosed with cocaine use (Exhibit 5F). In fact, the claimant
informed psychologist Kelly that she last used crack cocaine only a month
before her evaluation in January 2009 (Exhibit 14F). Accordingly, there is
no clear evidence the claimant has truly stopped her substance abuse, which
only serves to further harm her credibility.
Providing an opinion as to the claimant’s mental functioning, Marshall D.
Tessnear, Ph.D., testified the claimant’s primary mental impairment was her
polysubstance dependence. Dr. Tessnear then pointed to the fact the
claimant was still using cocaine as recently as December 2008. Ultimately,
Dr. Tessnear concluded the claimant had only mild to moderate limitations
in activities of daily living and social functioning while she had moderate
limitations in concentration, persistence, and pace. Dr. Tessnear identified
only one episode of decompensation. He further opined that other opinions
of record indicating more significant limitations appeared to include
restrictions arising from the claimant’s substance abuse. Dr. Tessnear’s
opinion is consistent with the record and is given significant weight.
On the other hand, psychologist Kelly provided an opinion identifying two
areas of marked mental limitations and several areas of moderate limitations
(Exhibit 14F). She opined the claimant was markedly limited in areas
relating to maintaining attendance and accepting instructions and criticism
from supervisors. Psychologist Robinson opined the claimant would have
marked limitations in handling complex instructions, interacting with the
public and supervisors, as well as responding to changes in routine work
setting (Exhibit 18F). Although some of these limitations were adopted in the
above residual functional capacity, these opinions are given little weight
overall as they are inconsistent with the record of conservative care and nonacute objective findings. Moreover, Dr. Tessnear reliably testified that some
of these identified limitations were due to the claimant’s substance abuse.
22
In summary, the claimant’s subjective complaints and alleged limitations are
not fully persuasive and the record as a whole establishes that she retains the
capacity to perform work activities with the limitations set forth above.
(Tr. at 24-25.)
The ALJ’s hypothetical to the Vocational Expert, Celia Thomas, at the February 23,
2010 hearing:
Q:
Ms. Thomas, I want you to assume a person the same age, education,
and work history as Ms. Donahue, and assume this person is limited
to light work. And assume that the person cannot climb ladders, ropes
or scaffold. That the person can only occasionally climb stairs and
ramps, balance, stoop, crouch, kneel and crawl. This person must
avoid pulmonary irritants and temperature extremes, and must avoid
hazards and machinery. Ma’am, with this scenario would there be
appropriate work for the person I’ve just described to you?
A:
Yes, your Honor...
Q:
Well, and let me add this. The person can’t do detailed or complex
work, all right...
A:
...There would be jobs in both scenarios, Your Honor...
(Tr. at 84-85.)
The undersigned finds that the hypothetical question posed by the ALJ included
those limitations that were supported by substantial evidence of record. The ALJ’s residual
functional capacity finding related to Claimant’s impairments reflected Claimant’s
limitations as supported by substantial evidence of record. These limitations were included
in a hypothetical question, and the vocational expert concluded that Claimant could
perform work.
Claimant’s representative had an opportunity to pose additional
hypothetical questions to the vocational expert, and did so. The record clearly shows that
the ALJ was present and participating in the re-examination of the vocational expert. (Tr.
at 84-92.)
23
Claimant also argues that the ALJ improperly rejected “Generalized Anxiety
Disorder [GAD] as a severe impairment simply because there exists no documented panic
attacks...In doing so, the ALJ ignores two examining psychologists, both of which diagnosed
Donahue with GAD, and two medical expert reviewing sources who confirmed the diagnosis
at the hearings (Tr. 49, 82, 880, 918).” (Pl.'s Br. at 22-23.)
The Commissioner responds that
Plaintiff obfuscates the ALJ’s decision. The ALJ did not dispute that
Plaintiff’s GAD was a medically determinable impairment (Tr. 19). The ALJ
noted, for example, that Ms. Kelly and Ms. Robinson had diagnosed her with
a GAD (Tr. 19). The issue before the ALJ was whether Plaintiff’s GAD caused
limitations that significantly restricted her ability to perform basic work
activities...the ALJ noted that Plaintiff had stopped taking anti-anxiety
medication, Ativan, by June 2009 (Tr. 19, 315). The ALJ noted that Plaintiff’s
treating sources had never diagnosed her with a GAD, persuasively
suggesting that they did not believe that her condition was an on-going
medical problem (Tr. 19)...Penultimately, the ALJ noted that she considered
all of Plaintiff’s impairments when she assessed Plaintiff’s RFC and this
included her GAD (Tr. 18-19). Thus, the ALJ considered Plaintiff’s anxiety
disorder in evaluating her RFC.
(Def.’s Br. at 23-24.)
Claimant responds: “Objective evidence of the affect [sic] of her GAD was spread
throughout the record...the Defendant’s claim that there was no evidence that her anxiety
contributed to her limitations (Def.’s Br. at 23) is erroneous. Finally, the fact that she
stopped taking her medication should not be used against her unless the ALJ explores the
reasons for this stoppage. (See SSR 96-7p). Here, the ALJ failed to make such an inquiry.”
(Pl.'s Response Br. at 6.)
The ALJ made these findings regarding Claimant’s GAD:
[T]he record reflects the claimant was diagnosed with generalized anxiety
disorder, also nonsevere. In this regard, two consultative examiners of record
made this diagnosis but no treating source specifically made this
24
determination (Exhibits 14F, 18F). Further, the record contains no report the
claimant actually had any panic attacks. Although the claimant once was
taking Ativan, the evidence shows the claimant was no longer taking any
medication for anxiety as of June 2009 (Exhibit 20E). Overall, the evidence
fails to show the claimant’s anxiety was a severe impairment.
(Tr. at 19.)
The undersigned finds that the ALJ fully considered the evidence of record regarding
Claimant’s anxiety disorder and did not err in concluding that based upon several factors
outlined by the ALJ, it was not a severe impairment.
Weighing of Psychological Opinions
Claimant argues that the ALJ did not properly weigh or consider the opinions of the
psychologists, Ms. Kelly, Ms. Robinson, Dr. Tessnear, and Mr. Phelps. (Pl.'s Br. at 14-17.)
Specifically, Claimant asserts: “In rejecting Kelly’s report and RFC assessment, the ALJ
does not factor in her evaluation the examining relationship, nor does she consider Support
ability. Moreover, the ALJ ignores the objective signs and test results in Kelly’s report and
also ignores her supporting explanations. Finally, the ALJ ignores specialization...she also
fails to properly consider Dr. Tessnear’s findings in determining Donahue’s RFC! (Tr. 45)”
(Pl.'s Br. at 15-16.)
Claimant argues that the ALJ failed “to mention or weigh the testimony of medical
expert William Phelps, who testified at the second hearing...Phelps corroborated the
findings of GAD and depressive disorder resulting from the testing performed by Sheila
Kelly and later confirmed by Kelly Robinson.” (Pl.'s Br. at 21-22.)
The Commissioner responds that
Plaintiff did not have a treatment relationship with any of these psychologists
(Tr. 43-52, 70-84, 872-86). A case cannot be decided in reliance on a medical
opinion without some reasonable support for the opinion...The ALJ adopted
25
some of the limitations included in these opinions but gave limited weight to
those portions that were inconsistent with Plaintiff’s non-acute objective
findings and record of conservative care (Tr. 25)...
Given that the ALJ decided to, nevertheless, give Plaintiff the benefit of the
doubt by finding that she had severe mental impairments outside of her
polysubstance abuse (Tr. 19), the ALJ did not commit a reversible error.
(Def.’s Br. at 20-22.)
Claimant responds that “a personality disorder is basically untreatable...The fact that
some of her copious tears might have been designed to manipulate is entirely consistent
with the diagnosis of her personality pathology.” (Pl.'s Response Br. at 7-8.)
Every medical opinion received by the ALJ must be considered in accordance with
the factors set forth in 20 C.F.R. §§ 404.1527(d) and 416.927(d) (2010). These factors
include: (1) length of the treatment relationship and frequency of evaluation, (2) nature and
extent of the treatment relationship, (3) supportability, (4) consistency (5) specialization,
and (6) various other factors. Additionally, the regulations state that the Commissioner
“will always give good reasons in our notice of determination or decision for the weight we
give your treating source’s opinion.” Id. §§ 404.1527(d)(2) and 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 undersigned finds that the ALJ properly considered the opinion evidence of Ms.
Kelly, Ms. Robinson, Dr. Tessnear, and Mr. Phelps. As shown on pages 26-28 of this
opinion, the ALJ fully addressed the reports of Ms. Kelly, Ms. Robinson, and Dr. Tessnear.
(Tr. at 24-25.) As for the testimony of Mr. Phelps, clearly the ALJ considered his testimony
as he questioned him extensively in the February 23, 2010 hearing. (Tr. at 70-83.) Mr.
Phelps concluded that Claimant did not have a severe impairment without substance abuse.
(Tr. at 76.) The undersigned notes that despite this testimony, the ALJ gave Claimant the
benefit of the doubt by finding that she had severe mental impairments outside of her
polysubstance abuse. (Tr. at 19.) It is further noted that Claimant did not have a treatment
relationship with any of these psychologists.
Treating Physician
Claimant argues that the ALJ “did not apply the two pronged treating physician
formula” to the opinions of Kevin Eggleston, M.D., pulmonologist, who opined that
Claimant “is able to walk only two city blocks without rest and needs unscheduled breaks
during an eight hour day. (Tr. 909)” (Pl.'s Br. at 19.) Claimant stated: “With respect to Dr.
Eggleston’s assessment, the ALJ cannot simply disregard a treating physician’s RFC without
explanation or proper weighing of the evidence. Dr. Eggleston cited the objective evidence
and laboratory findings he relied upon in reaching his RFC.” (Pl.'s Br. at 21.)
27
The Commissioner responds that
The ALJ determined that Plaintiff’s COPD and other impairments restricted
her, in part, to non-strenuous work...that did not involve exposure to
pulmonary irritants and temperature extremes (Tr. 21)...The ALJ explained
why she found Dr. Eggleston’s opinion was entitled to “little” weight, contrary
to what Plaintiff argues...because it was inconsistent with the record,
including Dr. Eggleston’s own medical findings, that contained non-acute
findings and documented merely conservative care (Tr. 24).
(Def.’s Br. at 24-25.)
In evaluating the opinions of treating sources, the Commissioner generally must give
more weight to the opinion of a treating physician because the physician is often most able
to provide “a detailed, longitudinal picture” of a claimant’s alleged disability. See 20 C.F.R.
§§ 404.1527(d)(2) and 416.927(d)(2) (2010). 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
determine whether the Commissioner’s conclusions are rational. Oppenheim v. Finch, 495
F.2d 396, 397 (4th Cir. 1994).
If the ALJ determines that a treating physician’s opinion should not be afforded
controlling weight, the ALJ must then analyze and weigh all the evidence of record, taking
28
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) Consistency, (5)
Specialization, and (6) various other factors. Additionally, the regulations state that the
Commissioner “will always give good reasons in our notice of determination or decision for
the weight we give your treating source’s opinion.” Id. §§ 404.1527(d)(2), 416.927(d)(2).
Regarding Dr. Eggleston’s reports and opinions, the ALJ made these findings:
[T]he record shows the claimant saw pulmonologist Kevin Eggleston, M.D.,
who noted in November 2008 the claimant had an abnormal pulmonary
function test indicating small airway disease (Exhibit 5F). Dr. Eggleston even
noted on examination of the claimant that she exhibited diminished breath
sounds and faint wheezing. Ultimately, Dr. Eggleston determined the
claimant had chronic obstructive pulmonary disease (Exhibit 16F). Dr. Beard
similarly concluded the claimant had possible chronic bronchitis with
possible asthmatic component (Exhibit 7F).
Nevertheless, Dr. Eggleston reported the claimant exhibited no rales,
rhonchi, retractions, or labored breathing (Exhibit 15F). He also noted the
claimant’s spirometry test resulted in an FEV1 that was 83% of the predicted
value. Dr. Beard reported the claimant did appear to have mild dyspnea on
exertion but concluded the claimant’s spirometry on that occasion was
normal (Exhibit 7F). Consistent with these findings, the claimant had a chest
x-ray in November 2008 that was normal (Exhibit 9F). Additionally, the
record shows only conservative care with a Symbicort inhaler to treat the
claimant’s breathing difficulties. Notably, the claimant was also able to exert
herself for nearly three minutes in a cardiac treadmill stress test, stopping
primarily due to fatigue and generalized deconditioning (Exhibit 12F). This
demonstrated ability to complete the significant demands of a cardiac stress
test combined with the largely benign objective findings and conservative
care all indicate the claimant was not as limited by breathing problems as she
alleged.
Providing an opinion regarding the claimant’s physical limitations, Judith
Brendemuehl testified the claimant’s COPD was described as “mild” in the
record...Overall, Dr. Brendemuehl concluded the claimant could perform
light work with the postural and environmental limitations adopted in the
above RFC. This opinion is consistent with the record and is given significant
weight...
29
Providing another opinion, pulmonologist Dr. Eggleston concluded the
claimant was limited to walking no more than two blocks without resting and
would need unscheduled breaks during an 8-hour workday (Exhibit 16F). Dr.
Eggleston reported these limitations were related to the claimant’s COPD and
chronic low back pain. However, Dr. Eggleston acknowledged the claimant
had a pulmonary function test result with an FEV1 that was 83% of the
predicted value. Overall, Dr. Eggleston’s opinion is inconsistent with the
record of non-acute findings and conservative care. This opinion is thereby
given little weight.
(Tr. at 23-24.)
The undersigned finds that the ALJ provided “good reasons” as required by the
regulations in concluding that Dr. Eggleston’s opinion was entitled to little weight. The ALJ
found that Dr. Eggleston’s conclusions were inconsistent with the record, including his own
medical findings, of “non-acute findings and conservative care.” (Tr. at 24.) It is also noted
that Dr. Eggleston was not a treating physician of long-standing, rather the record shows
that he treated her twice, on November 17, 2008 and December 23, 2008 for her breathing
difficulty concerns. (Tr. at 887-909.) Also, Dr. Eggleston’s initial notes indicate that
Claimant has smoked two packs of cigarettes per day for thirty years. (Tr. at 904.)
Substance Abuse
Claimant next argues that the ALJ did not properly analyze Claimant’s substance
abuse:
[A]ccording to the ALJ, some of Donahue’s limitations were due to her
substance abuse, thereby precluding a finding of disabled based upon her
mental limitations.
The ALJ, however misunderstands the issue. The issue is not whether the
claimant is a substance abuser of long standing, the issue is whether the
adjudicator can separate her mental or other impairments from her
substance abuse and conclude that, without the latter, the claimant would no
longer be disabled...
If it is impossible to separate the vocational impact of her mental impairment
30
from the vocational impact of her substance abuse, then substance abuse is
not material.
In this instance, the ALJ failed to conduct any analysis as to materiality, and
this error is critical to the outcome of this case.
(Pl.'s Br. at 13-14.)
The Commissioner responds that Claimant’s argument
mis-characterized the role “materiality” plays in drug abuse and alcohol
evaluation. An adjudicator determines whether a claimant’s drug addiction
or alcoholism is a contributing factor material to the determination of
disability if the adjudicator finds that the claimant is disabled and there is
medical evidence of drug addition or alcoholism (unless eligibility can be
based on age or blindness). 20 C.F.R. §§ 404.1535(a), 416.935(a). It is only
after the adjudicator determines that the claimant is disabled that the issue
arises whether the drug addition or alcoholism is a contributing factor that
is material to the determination of disability, i.e., whether the claimant would
still be found disabled if she stopped using drugs or alcohol. Id. at 20 C.F.R.
§§ 404.1535(b), 416.935(b). Here, the ALJ never found that Plaintiff was
disabled due to her polysubstance abuse, therefore, it was unnecessary to
determine whether it was material to the determination of her disability (Tr.
13-27). See id. Thus, Plaintiff is wrong.
(Def.’s Br. at 22-23.)
Claimant provided a response wherein she states: “The Defendant appears to have
misconstrued Donahue’s argument...It is clear from his [Dr. Tessnear] testimony that
Donahue’s substance abuse combined with her other mental impairments, was totally
disabling...Dr. Tessnear’s opinion is corroborated by the testimony of Dr. Phelps, who also
identified Donahue’s substance abuse as her most significant problem. (Tr. 45-46, 73).”
(Pl.'s Response Br. at 1-2.)
The undersigned finds that the Commissioner has correctly cited to 20 C.F.R. §§
404.1535(a), 416.935(a)(2010). It is only after the ALJ determines that a claimant is
disabled that the issue arises whether the drug addition or alcoholism is a contributing
31
factor that is material to the determination of disability. Id. at 20 C.F.R. §§ 404.1535(b),
416.935(b)(2010). In the subject claim, the ALJ did not find that Claimant was disabled;
therefore, it was not necessary to determine whether her polysubstance abuse was material
to the determination of her disability. (Tr. 13-27.) The undersigned finds that although Dr.
Tessnear and Dr. Phelps testified that Claimant’s primary diagnosis was polysubstance
abuse, this does not translate to a finding of disability. (Tr. 45-46, 73.) The ultimate
decision about disability rests with the Commissioner. 20 C.F.R. §§ 416.927(e)(1) and
404.1527(e)(1) (2010).
Credibility
Claimant argues that the “ALJ’s analysis of credibility in this case is deficient.” (Pl.'s
Br. at 17-19.) Specifically, Claimant asserts that “the ALJ improperly discredits Donahue’s
credibility due to her history of drug addiction and the weak objective findings and
conservative care of her treating physicians...In failing to make specific findings as to
credibility with clear and convincing reasons for each finding, the ALJ commits reversible
error.” Id.
The Commissioner responds that Claimant is wrong in asserting that the ALJ’s
credibility analysis is deficient:
The ALJ determined that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were not credible to the
extent that they were inconsistent with her RFC (Tr. 22). The record sustains
the ALJ’s determination. The ALJ considered what the non-medical and
medical evidence said (Tr. 18-25). In basic terms, the credibility of Plaintiff’s
statements about her symptoms and their functional effects is the degree
which these statements can be believed and accepted as true...
Here the ALJ noted that there was some indicia that Plaintiff may have
exaggerated her symptoms and non-acute findings and the conservative
treatment that she received for her non-polysubstance abuse related
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complaints revealed that her claims could not wholly be accepted as true (Tr.
18-25)...
[T]he ALJ noted there was no clear evidence that Plaintiff had “truly” stopped
her substance abuse, which the ALJ concluded undermined her credibility
(Tr. 25, 31, 50). This was because, in part, Dr. Brendemuehl thought that
some of Plaintiff’s complaints were, to a degree, related to her seeking opiates
(Tr. 41-42).
(Def.’s Br. at 18.)
Claimant responds that “the fact that the Defendant did not contest the Plaintiff’s
assertion that the ALJ failed to properly assess Donahue’s credibility is an admission that
he couldn’t...The ALJ also attacks her credibility because there was no evidence that she
stopped her substance abuse. However, Donahue readily acknowledged that since she had
completed rehab, “there had been a few slips.” (Tr. 28). She was also otherwise totally up
front about her history of substance abuse. (Tr. 36-38). Thus, the ALJ found her not
credible for being honest.” (Pl.'s Response Br. at 6-7.)
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:
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- The medical signs and laboratory findings;
- Diagnosis, prognosis, and other medical opinions provided 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.
Regarding Claimant’s credibility, the ALJ made these findings:
In activities of daily living, the claimant has mild to moderate restriction. In
this regard, the claimant reported in November 2008 she has essentially no
difficulties caring for herself (Exhibit 10E). She also denied she required any
special reminders to take care of her personal needs or to take her
medications. The claimant further reported preparing her own meals daily
as well as doing laundry and minimal household chores.
In social functioning, the claimant has mild to moderate difficulties. With
regard to this area of functioning, the claimant reported going outside daily
as well as walking and using public transportation (Exhibit 10E). She
acknowledged being able to go out alone, shop in stores, and spend time with
family. The claimant further testified she had begun attending church
services.
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. In this regard, the claimant reported being capable of paying
bills, counting change, handling a savings account, and using a
checkbook/money orders (Exhibit 10E). She also reported spending time
reading and watching movies. The claimant was also attending some classes.
As for episodes of decompensation, the claimant has experienced one episode
of decompensation of extended duration. In this regard, the record shows the
claimant was in Prestera Center for substance abuse detoxification from June
30, 2006 through July 27, 2006 (Exhibit 19F). Although the claimant
reported additional hospitalizations for substance abuse to psychologist Kelly
Robinson, M.A., no records of these admissions were submitted (Exhibit
18F).
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(Tr. at 20-21.)
After consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause
the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible
to the extent they are inconsistent with the above residual functional capacity
assessment.
Essentially, the evidence of non-acute findings and conservative care fails to
support the extreme limitations alleged by the claimant. First, in terms of the
claimant’s alleged back pain, the record shows the claimant had a longstanding history of these complaints. As early as June 2002, the claimant
was diagnosed with acute back pain after a reported fall (Exhibit 3F). By May
2009, Kevin Eggleston, M.D., determined the claimant had chronic low back
pain (Exhibit 16F). Thereafter, the record reflects multiple emergency room
visits indicating the claimant had exacerbations of chronic back pain (Exhibit
21F). Eventually, in July 2009, the claimant saw neurologist Darshan Dave,
M.D., who did report the claimant exhibited a positive straight leg raising test
on one occasion (Exhibit 23F).
Nevertheless, the objective medical evidence pertaining to the claimant’s back
condition consists of overwhelming benign findings. For example, a June
2008 x-ray of the claimant’s lumbar spine was normal except some
“minimal” degenerative changes (Exhibit 5F). Similarly, a May 2009 x-ray
of the claimant’s lumbar spine revealed only small marginal osteophytes and
“early degenerative changes” at L3-4 and L5-S1 (Exhibit 20F). A
contemporaneous x-ray of the claimant’s thoracic spine revealed absolutely
no abnormalities. Consistent with these findings, consultative examiner Kip
Beard, M.D., noted in August 2008 the claimant exhibited no spinal
tenderness or range of motion abnormalities (Exhibit 7F). Dr. Beard also
noted the claimant could stand on one leg, tandem walk, heel walk, toe walk,
and squat three-quarters of the way. All of these normal findings combined
with the lack of significant or aggressive treatment for back pain suggest the
claimant is not as limited by pain as she alleged.
With regard to her knee pain, the record shows the claimant frequently
reported right knee pain and “locking up” to her physicians (Exhibits 1F, 2F,
3F, 5F, 6F)...Confirming some abnormalities of the knee, consultative
examiner Dr. Beard determined the claimant had internal derangement of
her right knee, status post arthroscopic surgery with possible osteoarthritis
(Exhibit 7F)...
However, Dr. Beard found no obvious atrophy or weakness of the claimant’s
right knee (Exhibit 7F)...Notably, the claimant’s most recent report of
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prescribed medications indicates that as of June 2009 she was taking only a
non-narcotic anti-inflammatory medication once a day for pain (Exhibit
20E). Again, this record is only minimal conservative care and largely benign
objective findings suggest the claimant is not fully credible.
(Tr. at 22-23.)
With respect to Claimant’s argument that the ALJ wrongfully discredited Claimant’s
subjective complaints of pain, the court finds that the ALJ properly weighed Claimant’s
subjective complaints of pain in keeping with the 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) (2010); SSR 96-7p, 1996 WL 374186 (July 2, 1996); Craig v.
Chater, 76 F.3d 585, 594 (4th Cir. 1996).
In his decision, the ALJ determined that Claimant had medically determinable
impairments that could cause her alleged symptoms. (Tr. at 22.) The ALJ’s decision
contains a thorough consideration of Claimant’s daily activities, the location, duration,
frequency, and intensity of Claimant’s pain and other symptoms, precipitating and
aggravating factors, Claimant’s medication and side effects, and treatment other than
medication. (Tr. at 20-20.) The ALJ explained his reasons for finding Claimant not
entirely credible, including the objective findings, the conservative nature of Claimant’s
treatment, the lack of evidence of side effects which would impact Claimant’s ability to
work, and her broad range of self-reported daily activities. (Tr. at 22-25.) Contrary to
Claimant’s assertions, there is no evidence that the ALJ “improperly discredits Donahue’s
credibility due to her history of drug addiction.” (Pl.'s Br. at 17.)
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
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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 19, 2012
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