Owens v. Colvin
Filing
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MEMORANDUM OPINION AND ORDER overruling plaintiff's 14 Objections; adopting the 13 Proposed Findings and Recommendation of the Magistrate Judge to the extent it is consistent with this Memorandum and Opinion and Order; denying plaintiff 039;s 10 Brief in Support of Judgment on the Pleadings; granting the defendant's 11 Brief in Support of Defendant's Decision; affirming the final decision of the Commissioner; dismissing this case; and directing this action removed from the Docket. Signed by Judge Thomas E. Johnston on 9/30/2015. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
BETHANY ANN OWENS,
Plaintiff,
v.
CIVIL ACTION NO. 2:14-cv-17942
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Bethany Ann Owens’s Complaint seeking review of
the final decision of the Commissioner of Social Security (the “Commissioner”). (ECF 2.) By
standing order entered on May 7, 2014 and filed in this case on June 30, 2014, this action was
referred to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings
and recommendations for disposition (the “PF&R”). (ECF 4.) On July 31, 2015, Magistrate
Judge Tinsley entered his PF&R, in which he recommends that this Court deny Plaintiff’s Brief in
Support of Judgment on the Pleadings, (ECF 10), grant Defendant’s Brief in Support of
Defendant’s Decision, (ECF 11), and dismiss this matter from the Court’s docket. (ECF 13.)
Plaintiff filed timely objections to the PF&R on August 13, 2015 (the “Objections”). (ECF 14.)
For the reasons that follow, the Court OVERRULES the Objections, (ECF 14), ADOPTS
the PF&R, (ECF 13), to the extent it is consistent with this Memorandum Opinion and Order,
DENIES Plaintiff’s Brief in Support of Judgment on the Pleadings, (ECF 10), GRANTS
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Defendant’s Brief in Support of Defendant’s Decision, (ECF 11), AFFIRMS the final decision of
the Commissioner, and DISMISSES the action.
I.
Procedural Background
The facts concerning this matter are fully set forth in the PF&R and need not be repeated
here at length.
In short, Plaintiff filed applications for disability insurance benefits and
supplemental security income on March 4, 2011, alleging disability as of July 31, 2008. (ECF 97 at 4–9, 10–16.) The applications were initially denied on May 3, 2011, (ECF 9-6 at 2–7), and
upon reconsideration on October 11, 2011, (id. at 12–17).
On October 11, 2012, Plaintiff appeared via video teleconference for a hearing before
Administrative Law Judge Jason R. Yoder (the “ALJ”). (ECF 9-4 at 2–59.) On November 27,
2012, the ALJ issued an unfavorable decision.1 (ECF 9-3 at 2–27.) The Appeals Council denied
review of the ALJ’s decision on April 9, 2014. (ECF 9-2 at 2–8.) Thereafter, on June 9, 2014,
Plaintiff filed the Complaint in this Court. (ECF 2.)
II.
A.
Standard of Review
Review of the PF&R
The ALJ found at step one of the “sequential evaluation” process that Plaintiff “has not engaged in substantial gainful
activity since July 31, 2008, the alleged onset date.” (ECF 9-3 at 7.) At step two, the ALJ found that Plaintiff has
the following severe impairments: “bipolar disorder, attention deficit-hyperactivity disorder, generalized anxiety
disorder, and borderline intellectual functioning.” (Id. at 8.) At step three of the analysis, the ALJ found that
Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (Id. at 8–11.) The ALJ next found that
Plaintiff “has the residual functional capacity to perform a full range of work at all exertional levels,” with certain
listed nonexertional limitations. (Id. at 11–20.) At the fourth step, the ALJ determined that Plaintiff “is capable of
performing past relevant work as an overnight stocker.” (Id. at 20.) Nonetheless, the ALJ proceeded to the fifth step
of the analysis and made the alternative finding that Plaintiff “is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.” (Id. at 21.) The ALJ relied on the testimony of a
vocational expert in making this step-five determination. (See id.)
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The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendations
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition,
this Court need not conduct a de novo review when a party “makes general and conclusory
objections that do not direct the Court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
B.
Review of the ALJ’s Findings and Decision
“Under the Social Security Act, [a reviewing court] must uphold the factual findings of the
Secretary if they are supported by substantial evidence and were reached through application of
the correct legal standard.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (alteration in
original) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)); see, e.g., 42 U.S.C. § 405(g)
(“The findings of the Secretary as to any fact, if supported by substantial evidence, shall be
conclusive . . . .”); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987) (“A factual finding by
the ALJ is not binding if it was reached by means of an improper standard or misapplication of the
law.”). Substantial evidence “means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
“[I]t consists of more than a mere scintilla of evidence but may be somewhat less than a
preponderance.” Mastro, 270 F.3d at 176 (alteration in original) (quoting Laws v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966)). “In reviewing for substantial evidence, [the court should] not
undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its]
judgment for that of the Secretary.” Craig, 76 F.3d at 589 (citing Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990)). If “conflicting evidence allows reasonable minds to differ as to whether a
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claimant is disabled,” the Court must defer to the Commissioner’s decision. Id. (citing Walker
v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)).
Plaintiff “bears the burden of proving that he is disabled within the meaning of the Social
Security Act.” English v. Shalala, 10 F.3d 1080, 1082 (4th Cir. 1993) (citing 42 U.S.C. §
423(d)(5) and Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981)). “The term ‘disability” means .
. . inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. §
423(d)(1)(A).
The Commissioner uses a five-step “sequential evaluation” process to evaluate a disability
claim.2 See 20 C.F.R. §§ 404.1520(a) & 416.920(a)(4). The claimant bears the burden of proof
at steps one through four, but the burden shifts to the Commissioner at step five. See Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision regarding disability can be made at any step
of the process, however, the inquiry ceases. See 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4).
III.
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Discussion
In Hall v. Harris, the Fourth Circuit provided the following description of the “sequential evaluation” analysis:
Under the process the ALJ must determine in sequence: (1) whether the claimant is currently
engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; (3) if so,
whether that impairment meets or equals the medical criteria of Appendix 1 which warrants a finding
of disability without considering vocational factors; and (4) if not, whether the impairment prevents
him from performing his past relevant work. By satisfying either step 3 or 4, the claimant
establishes a prima facie case of disability. The burden then shifts to the Secretary and leads to the
fifth and final inquiry in the sequence: whether the claimant is able to perform other work
considering both his remaining physical and mental capacities (defined as residual functional
capacity) and his vocational capabilities (age, education, and past work experience) to adjust to a
new job.
658 F.2d at 264–65; see also 20 C.F.R. §§ 404.1520 & 416.920 (providing the “sequential evaluation” analysis).
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Plaintiff objects to the PF&R’s affirmance of the ALJ’s decision to assign “little weight”
to an opinion submitted by two treating psychologists from Schwabe and Associates
(“Schwabe”)—Ninette Fernandes, LLB, MA and Tina M. Leisure, Ph.D. (ECF 14.) Plaintiff
argues that the ALJ failed to comply with the requirements set forth in 20 C.F.R. § 404.1527 in
assessing the proper weight to give a treating physician’s opinion. Specifically, Plaintiff argues
that “[t]he ALJ failed to provide sufficient ‘good reasons’ for assigning ‘little weight’ to the
opinion of Ms. Fernandes and Dr. Leisure, making it impossible for this Court to determine
whether his decision was based on substantial evidence.” (Id. at 5.) For the reasons that follow,
the Court OVERRULES Plaintiff’s objection.
Generally, an ALJ will give more weight to the medical opinions of “a source who has
examined [a claimant] than to the opinion of a source who has not examined [a claimant].” SSR
06-03P; see also 20 C.F.R. §§ 404.1527(c)(1) & 416.927(c)(2). Further, medical opinions from
a treating physician are entitled to special weight. Specifically, an opinion from a “treating
source” as to the “nature and severity” of a claimant’s impairment is entitled to “controlling
weight” where it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record.”
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C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). Where a treating source’s opinion is not entitled to
controlling weight, the ALJ must still consider its appropriate weight with reference to the
following factors: (1) the length of treatment of the claimant by the treating source; (2) the
frequency of examination by the treating source: (3) the nature and extent of the treatment
relationship; (4) the support of the treating source’s opinion afforded by the medical evidence of
record; (5) the consistency of the opinion with the record as a whole; (6) the specialization of the
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treating source; and (7) any other relevant factors. 20 C.F.R. §§ 404.1527(c) & 416.927(c). The
ALJ is required to give “good reasons” for the weight ultimately given to the treating source’s
opinion. Id.
When an ALJ does not give a treating source’s medical opinion controlling weight, his
decision must present sufficient “good reasons” to make clear to a reviewing court why the ALJ
determined the opinion, in accordance with the regulations, to be either not supported by clinical
data or not consistent with the other substantial evidence in the record. Once this obligation is
fulfilled, the ALJ must still provide some explanation for the ultimate, non-controlling weight to
be accorded the treating source opinion. Here, “[t]he ultimate test is not whether the ALJ
mechanically recited each [20 C.F.R. § 404.1527(c)(2)] factor, but whether it is clear from the
decision that all of the pertinent factors were considered.” McNeely v. Colvin, Civil Action No.
2:13-cv-767, 2014 WL 4929437, at *9 (S.D.W. Va. Sept. 30, 2014) (citing Oldham v. Astrue, 509
F.3d 1254, 1258 (10th Cir. 2007) and Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004)).
As this Court has noted before, the regulations require an ALJ to consider the six enumerated
factors listed above, but does not demand explicit written discussion of each factor. Hardy v.
Colvin, Civil Action No. 2:13-cv-20749, 2014 WL 4929464, at *2 (S.D. W. Va. Sept. 30, 2014.)
“An ALJ’s determination as to the weight to be assigned to a medical opinion will generally
not be disturbed absent some indication that the ALJ has dredged up specious inconsistencies, or
has not given good reason for the weight afforded a particular opinion.” Koonce v. Apfel, 166
F.3d 1209, at *2 (4th Cir. 1999) (citations omitted). In this case, a review of the ALJ decision
clearly reveals that the decision to give the treating source opinion at issue little weight was based
on “good reasons,” namely that the opinion was inconsistent with the record as a whole, and that
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the ALJ’s conclusion was supported by substantial evidence. See Craig, 76 F.3d at 590 (“By
negative implication, if a [source’s] opinion is not supported by clinical evidence or if it is
inconsistent with other substantial evidence, it should be accorded significantly less weight.”).
The treating source opinion is a two-page document detailing the nature of Plaintiff’s
therapy sessions with the treating psychologists, Ms. Fernandes and Dr. Lesiure, and the goals of
such sessions. (ECF 9-18 at 31–32.) Although reporting that the Plaintiff had made progress
during these therapy sessions, the opinion notes that the Plaintiff’s “symptoms would continue to
interfere with her ability to be gainfully employed.” (Id. at 32.) Although these symptoms had
improved with treatment, the opinion expresses concern that the symptoms might “resurface
should a stressful situation arise . . . .” (Id.) Ultimately, the opinion concludes: “[i]n light of
[Plaintiff’s] diagnosis and her prognosis, it appears that her symptoms pose a limitation that could
interfere with her ability to maintain employment.” (Id.)
First, the ALJ did not accord the opinion of these psychologists controlling weight.
Specifically, the ALJ characterized their testimony as an opinion that the claimant’s symptoms
“posed a limitation that could interfere with her ability to maintain employment.” (ECF 9-3 at
17.) The ALJ determined this opinion to be “on an issue reserved to the Commissioner,” and as
such not entitled to controlling weight. Id. This decision accords with the regulations, which
provide that the ultimate determination on disability is reserved to the Commissioner, and that
medical opinions on reserved issues are “not medical opinions” entitled to controlling weight. 20
C.F.R. § 404.1527(d). To the extent the treating source in this case expresses an opinion as to
Plaintiff’s ultimate disability, that opinion is not entitled to controlling weight and the ALJ was
correct to treat it accordingly.
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Moreover, the ALJ made clear that the opinion was not consistent with the evidence in the
record. In making the ultimate assessment as to the appropriate weight to accord the opinion, the
ALJ settled upon “little weight” because “it is not supported by objective evidence and it is
inconsistent with the record as a whole.” Id. Specifically, the ALJ noted that the opinion was
internally inconsistent with Schwabe’s treatment notes, which indicated that Plaintiff was
generally doing well and expressing no new concerns, and inconsistent with Plaintiff’s admitted
life activities. Id. Thus, in making its determination to give the opinion little weight, the ALJ
relied on the fact that its conclusions were not consistent with evidence in the record as a whole.
So long as this determination was based on substantial evidence in the record, the ALJ was within
his discretion to do so. See Mastro, 270 F.3d at 178 (“[T]he ALJ holds the discretion to give less
weight to the testimony of a treating physician in the face of persuasive contrary evidence.”
(citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992))).
Substantial evidence supports the ALJ’s conclusion that the treating source’s opinion was
inconsistent with the record as a whole.
In fact, that opinion was inconsistent even with
Schwabe’s written records describing Plaintiff’s treatment at the facility. As the ALJ decision
notes, Plaintiff received treatment for both attention deficit-hyperactivity disorder and bipolar
disorder with Schwabe. (ECF 9-3 at 13.) At sessions with Schwabe, Plaintiff consistently
indicated that she was doing well and never reported additional concerns over the course of her
treatment. (Id. at 9–10.) The record of Plaintiff’s treatment while at Schwabe shows every
indication that her condition was improving and that Schwabe personnel had no reason to be
concerned with Plaintiff’s symptoms. (ECF 9-15 at 15–36.)
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Moreover, Plaintiff’s overall treatment history demonstrates a pattern of general
improvement, rather than relapse, in response to therapeutic treatment. (See ECF 9-3 at 13 (noting
“almost immediate improvement” in response to bipolar treatment with Dr. Valerie Keller); id. at
14 (noting relatively rapid improvement in response to medication for attention deficithyperactivity disorder); id. at 15 (noting that medications for generalized anxiety disorder were
“helpful and effective” and that treatment with Dr. Keller led to “immediate improvement”).)
This record of successful treatment supports the ALJ’s statement that “the claimant improved with
treatment and is capable of performing at least simple, routine, repetitive tasks,” (id. at 18), as well
as the ALJ’s ultimate conclusion that the treating source’s opinion to the contrary was in opposition
to the record as a whole.
Further, the record is replete with admissions by Plaintiff as to functioning capacity that
support the ALJ’s determination and contradict the treating source opinion that Plaintiff’s
symptoms presented a continuing interference “with her ability to be gainfully employed.” (ECF
9-18 at 32.) The ALJ notes several examples of Plaintiff’s ability to engage effectively in
everyday life activities, including getting engaged, attending a football game, attending church,
cleaning and maintaining her house, caring for herself and her child, and even throwing a birthday
party for her daughter with 25 other children as guests. (ECF 9-3 at 16, 18–19.) The record also
reveals testimony that on an average day the Plaintiff runs errands, goes grocery shopping, spends
time with friends, and does the laundry. (Id. at 18.) The ALJ further cited Plaintiff’s testimony
suggesting that a primary reason that she had not been able to get work in the past was because
she had been unable to find a job that could accommodate her daughter’s schedule, and that
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difficulty balancing the responsibilities of being a single mother, rather than any disability, had led
Plaintiff to leave college. (Id. at 19.)
On this record, Plaintiff is incorrect to argue that “the only mention of evidence the ALJ
considered in weighing the treating source opinions were treatment notes from Schwabe . . . .”
(ECF 14 at 5.) To the contrary, the ALJ noted the opinion of the treating source opinion was “not
supported by objective evidence and . . . inconsistent with the record as a whole.” (ECF 9-3 at
17.) More importantly, the ALJ referenced specific evidence in the record with which the source
opinion was inconsistent, which included not only the Schwabe treatment notes, but also
“claimant’s admitted activities of daily living that have already been described above in this
decision.” (Id.)
As described above, the rest of the ALJ decision catalogued several specific pieces of
evidence indicating Plaintiff’s general ability to function and perform at least simple, repetitive,
and routine tasks.
It further demonstrated Plaintiff’s history of successfully maintaining
improvement in response to appropriate treatment programs. Substantial evidence in the record,
including particularly Plaintiff’s status as a caregiver to her young daughter, her past ability to
work as a night stocker, and her history of consistent improvement (without any corresponding
setbacks) in response to treatment programs, contradicted the treating source opinion that
Plaintiff’s symptoms would make it difficult for her to maintain any employment in the future.
As such, the ALJ was entitled to give that opinion correspondingly lesser weight.
The record in this case reveals that the ALJ gave adequate consideration to the treating
source opinion of Ms. Fernandes and Dr. Leisure in compliance with the applicable regulations.
The ALJ gave “little weight” to the opinion for the “good reason” that it was inconsistent with the
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rest of the record as a whole, a record the ALJ comprehensively addressed. As such, the ALJ’s
determination applied the correct standard and is supported by substantial evidence.
IV.
Conclusion
For the reasons stated herein, the Court OVERRULES Plaintiff’s objections, (ECF 14),
ADOPTS the PF&R, (ECF 13), to the extent it is consistent with this Memorandum and Opinion
and Order, DENIES Plaintiff’s Brief in Support of Judgment on the Pleadings, (ECF 10),
GRANTS the Defendant’s Brief in Support of Defendant’s Decision, AFFIRMS the final decision
of the Commissioner, DISMISSES this case, and DIRECTS the Clerk to remove this action from
the Docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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September 30, 2015
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