Evans v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER adopting and incorporating the 15 Proposed Findings and Recommendations by Magistrate Judge; denying plaintiff's 11 Motion for judgment on the pleadings; granting the Commissioner's 12 Motion for judgmen t on the pleadings; affirming the final decision of the Commissioner; granting judgment in favor of the Commissioner; dismissing and striking this civil action from the docket. Signed by Judge John T. Copenhaver, Jr. on 3/30/2016. (cc: counsel of record; United States Magistrate Judge) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JAMES MARTIN EVANS, JR.,
Plaintiff,
v.

Civil Action No. 14-29072

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are the objections filed on February 29, 2016,
by plaintiff James Martin Evans, Jr., to the magistrate judge’s
proposed findings and recommendation (“PF&R”).
I.
On November 26, 2014, plaintiff instituted this civil
action, pursuant to 42 U.S.C. § 405(g).

This action was

referred to United States Magistrate Judge Omar J. Aboulhosn.
Plaintiff seeks judicial review of the final decision by
defendant Carolyn W. Colvin (the “Commissioner”) denying
plaintiff’s application for social security benefits.
On February 12, 2016, the magistrate judge filed his
PF&R.

In that document, the magistrate judge recommends that

the Commissioner's final decision be affirmed and this matter

dismissed from the docket.

On February 29, 2016, plaintiff

timely filed his objections, and on March 1, 2016, the
Commissioner filed her response thereto.
Plaintiff objects to the magistrate judge’s
determination that the Administrative Law Judge (“ALJ”) was
supported by substantial evidence in declining to give
controlling weight to a report by plaintiff’s treating
physician, Dr. Elma Z. Bernardo.

The Commissioner, in response,

maintains that the ALJ “reasonably gave Dr. Bernardo’s opinion
some weight and was not obligated to adopt [Dr. Bernardo’s]
opinion wholesale[.]”
II.
The sole issue before the court is whether the
decision denying plaintiff’s claim is supported by substantial
evidence.

See 45 U.S.C. § 405(g).

Substantial evidence is

evidence “which a reasoning mind would accept as sufficient to
support a particular conclusion.”
F.2d 773, 776 (4th Cir. 1972).

Blalock v. Richardson, 483

“It consists of more than a mere

scintilla of evidence but may be somewhat less than a
preponderance.”

Id. (quoting Laws v. Celebrezze, 368 F.2d 640,

642 (4th Cir. 1996)).
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A.
Every medical opinion reviewed by the ALJ must be
considered in accordance with the factors set forth in 20 C.F.R.
§§ 404.1527 and 416.927.

Further, under the treating physician

rule, an ALJ must generally give relatively more weight to the
medical opinions of a claimant’s treating physician when
determining whether a claimant is disabled.

See 20 C.F.R. §

416.927(c); Russell v. Comm’r of Soc. Sec., 440 F. App’x 163,
164 (4th Cir. 2011).

Indeed, a treating physician’s opinions

concerning the “nature and severity” of a claimant’s impairments
are to be given “controlling weight” if they are “well-supported
by medically acceptable clinical and laboratory diagnostic
techniques and . . . not inconsistent with the other substantial
evidence in [the claimant’s] case record[.]”
416.927(c)(2).

20 C.F.R. §

But even if a treating physician’s opinion is

ultimately adjudged not to be entitled to controlling weight,
our court of appeals has explained that “the value of the
opinion must be weighed and the ALJ must consider: (1) the
physician’s length of treatment of the claimant, (2) the . . .
frequency of examination, (3) the nature and extent of the
treatment relationship, (4) the support of the physician’s
opinion afforded by the medical evidence of record, (5) the
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consistency of the opinion with the record as a whole[,] and (6)
the specialization of the treating physician.”

Burch v. Apfel,

9 F. App’x 255, 259–60 (4th Cir. 2001) (citing 20 C.F.R. §
404.1527).

Whatever the ALJ’s conclusion, it must be explained

in his decision.

Hays v. Sullivan, 907 F.2d 1453, 1456 (4th

Cir. 1990); Gordon v. Schweiker, 724 F.2d 231, 233 (4th Cir.
1984).
B.
Dr. Bernardo began treating plaintiff in February of
2009.

Tr. at 632.

In August of 2012, Dr. Bernardo filled out a

mental impairment questionnaire, in which she checked boxes
regarding plaintiff’s mental and psychological limitations.

Tr.

at 636-41.
In that document, Dr. Bernardo stated that plaintiff
was “slightly” limited in his ability to remember work-like
procedures, understand and remember short and simple
instructions, and make simple work related decisions.
639.

Tr. at

She indicated that plaintiff was “moderately” limited in

his ability to understand, remember, and carry out detailed
instructions, maintain attention for extended periods of time,
interact appropriately with the public, respond appropriately to
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criticism from workplace supervisors, get along with co-workers
without unduly distracting them, respond appropriately to
changes at work, and travel in unfamiliar places or use public
transportation.

Tr. at 639-41.

Finally, Dr. Bernardo checked

boxes indicating that plaintiff had “marked” limitations in his
abilities to maintain regular attendance, be punctual, sustain
an ordinary routine without special supervision, work alongside
others without being unduly distracted by them, complete a
normal work day and work week without undue interruptions due to
his symptoms, perform at a consistent pace, and make plans
independently of others.

Tr. at 639-41.

As noted above, Dr. Bernardo’s opinion did not
receive controlling weight in this case.

Rather, the ALJ found

that the probative value of Dr. Bernardo’s opinion was limited,
given the limited nature of the documentation in support of it.
Tr. at 24.

In particular, the ALJ was concerned that the

assessment was composed of check-box answers to general
questions, offered without any explanation or reference to
clinical findings.

Tr. at 24-27.

The ALJ further found that

Dr. Bernardo’s assessment was inconsistent with Dr. Bernardo’s
own, earlier opinions about plaintiff’s mental health, but that
again no explanation was offered for the inconsistency.
5

Tr. at

25.

Finally, the ALJ found that Dr. Bernardo’s assessment was

not supported by other substantial evidence in the record.
at 26-27.

Tr.

Consequently, the ALJ gave Dr. Bernardo’s report some

weight -- primarily in light of her treating relationship with
plaintiff -- but not controlling weight.

Tr. at 27.

Chief among the aforementioned contrary evidence in
the record were the opinions offered by Sheila Emerson Kelly,
M.A., and Holly Cloonan, Ph.D.

According to the ALJ, Ms.

Kelly’s opinion was entitled to “partial weight based on the
examining relationship” between plaintiff and Ms. Kelly, but
diminished in authority “considering [Ms. Kelly’s] only
obligation [in completing the assessment] was to merely check []
off boxes or fill[] in the blank, without any . . . reference to
the clinical findings.”

Tr. at 27.

Plaintiff visited Ms. Kelly on August 17, 2012, for a
consultative psychological examination at his counsel’s request.
Tr. at 681-89.
disorder.

Ms. Kelly diagnosed plaintiff with bipolar

Tr. at 688.

She also noted a history of alcohol and

marijuana dependence, both of which were at that time in partial
remission.

Id.

Like Dr. Bernardo, Ms. Kelly filled out a

questionnaire in which she checked boxes indicating plaintiff’s
mental or psychological strengths and weaknesses.
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Tr. at 691-

93.

Ms. Kelly opined that plaintiff labored under “slight” or

“moderate” limitations in every category of review, except that
she found a “marked” limitation in plaintiff’s ability to
maintain attention for extended periods of time.

Id.

In addition, plaintiff’s medical records, but not
plaintiff himself, were examined by Dr. Cloonan, a state agency
psychologist.

Tr. at 507-24.

Like Dr. Bernardo and Ms. Kelly,

Dr. Cloonan completed a form report with checkboxes.
508-18.

See Tr. at

However, Dr. Cloonan’s report was supplemented by a

page of notes summarizing plaintiff’s medical history, as it
related to treatment of his mental health problems, and drawing
conclusions therefrom.

See Tr. at 519.

According to the ALJ,

Dr. Cloonan’s findings were entitled to “significant weight[,]
as they are consistent with the medical record[.]”

Tr. at 28.

In his review, Dr. Cloonan noted that plaintiff had
mild difficulties with daily activities, moderate difficulties
in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and no repeated
episodes of decompensation.

Tr. at 517.

Nevertheless, in

assessing plaintiff’s mental RFC, Dr. Cloonan stated that
plaintiff could perform routine, repetitive work-like activities
in a setting with limited interactions with the public and co7

workers.

Tr. at 523.

On March 30, 2012, Bob Marinelli, Ed.D.,

another state agency psychologist, reviewed plaintiff’s medical
records and agreed with Dr. Cloonan’s assessment.

Tr. at 534.

The ALJ found that plaintiff’s diagnosed bipolar
disorder, generalized anxiety disorder, and substance abuse were
“severe” impairments.

Tr. at 17-20.

Despite the presence of

these impairments, the ALJ concluded that plaintiff retained the
capacity to perform a reduced range of light work.
28.

Tr. at 20-

In so concluding, the ALJ noted Dr. Bernardo’s January 13,

2012, assessment and opinion that plaintiff had no limitations
in his ability to carry out short instructions or to ask simple
questions.

Tr. at 27.

The ALJ also took into account Dr.

Bernardo’s aforementioned report that plaintiff had marked
limitations in his ability to maintain regular attendance at
work, be punctual, maintain an ordinary routine without
supervision, work together with others without being unduly
distracted by them, complete a normal work day and work week,
and to perform at a consistent pace.

Id.

After receiving

testimony from a vocational expert, the ALJ concluded, as noted
above, that plaintiff could perform a range of relatively low
skill jobs.

Tr. at 28.

Consequently, plaintiff’s application

for social security benefits was denied.
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Upon independent review of the record, the court
concludes that the ALJ was supported by substantial evidence in
deciding to give Dr. Bernardo’s opinion some weight, but not
controlling weight.

In making her determination, the ALJ

thoroughly explained her rationale for the weight afforded to
the medical opinions -- including that of Dr. Bernardo -- and
substantial evidence supports her findings.

Specifically, the

ALJ weighed and explained the evidence submitted by plaintiff in
support of his claim, addressing in turn the opinions of Dr.
Bernardo, Ms. Kelly, and Dr. Cloonan, along with the testimony
provided at trial by plaintiff and his brother.

Tr. at 26-28.

As noted, Dr. Bernardo’s conclusions failed to discuss
any rationale, provide any explanation, or cite to any clinical
or diagnostic evidence in support thereof.

Cf. 20 C.F.R. §

416.927(c)(3) (“The more a medical source presents relevant
evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that
opinion.”).

Rather, Dr. Bernardo’s conclusions were presented

in form reports, lacking vital explanatory details.

See, e.g.,

McGlothlen v. Astrue, No. 11-148, 2012 WL 3647411, at *6
(E.D.N.C. Aug. 23, 2012) (“[F]orm reports . . .

are arguably

entitled to little weight due to the lack of explanation[.]”);
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Bishop v. Astrue, No. 10-2714, 2012 WL 951775, at *3 n.5 (D.S.C.
Mar. 20, 2012) (“‘[F]orm reports in which a physician’s
obligation is only to check a box or fill in a blank are weak
evidence at best.’”) (quoting Mason v. Shalala, 994 F.2d 1058,
1065 (3d Cir. 1993)).
Moreover, the “marked” limitations noted in Dr.
Bernardo’s assessment were inconsistent with Dr. Bernardo’s
earlier examination reports, which showed relatively mild
problems.

Compare Tr. at 639-41 (showing a large number of

“marked” limitations) with Tr. at 631, 702 (each report showing
only “moderate” and “mild” problems).

Yet, the abrupt change in

Dr. Bernardo’s assessment, from relatively mild problems to
relatively serious ones, is not explained.

20 C.F.R. §

416.927(c)(4) (“Generally, the more consistent an opinion is
with the record as a whole, the more weight we will give to that
opinion.”).

Likewise, the court observes that the ALJ, in

considering the inconsistencies between Dr. Bernardo’s opinion
and other substantial evidence in the record, referenced an
October 11, 2010, treatment note indicating some moderate
deficiencies while making normal findings otherwise.

Tr. at 27

(referring, in turn to Tr. at 614); see also id. (referring to
Tr. at 702, containing a treatment note from Dr. Bernardo, dated
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March 25, 2013, which indicated only mild to moderate
deficiencies).

Further, the record indicates that Dr. Bernardo

changed some of her earlier, more negative findings to reflect
improvements in plaintiff’s condition occurring from January of
2012 to September of 2012.

Tr. at 639, 646.

Finally, evidence

from Ms. Kelly and Dr. Cloonan conflicted with Dr. Bernardo’s
assessment of fairly severe deficiencies in functioning,
although these opinions were supplemented by written analysis
and clinical findings, whereas Dr. Bernardo’s were not.

Compare

Tr. at 631-41 (Dr. Bernardo) with 681-89 (Ms. Kelly) and 523-24
(Dr. Cloonan).
The relatively un-detailed assessment compiled by Dr.
Bernardo, the contrary evidence from Dr. Bernardo herself, and
other evidence in the record showing fairly mild psychological
deficiencies, provide substantial support for the ALJ’s
determination to give Dr. Bernardo’s report less than
controlling weight.

The court notes, as well, that the ALJ

refrained from giving Dr. Bernardo’s report no weight, instead
giving it some weight in light of Dr. Bernardo’s status as
plaintiff’s treating physician.

Given the aforementioned

inconsistences, coupled with the less-than-comprehensive nature
of Dr. Bernardo’s reports, the court concludes that the ALJ’s
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decision to accord less than controlling weight to Dr.
Bernardo’s opinion was supported by substantial evidence.
III.
The court pauses to consider the arguments presented
by the parties in their briefing before the magistrate judge
respecting the effect of Mascio v. Colvin, 780 F.3d 632 (4th
Cir. 2015), on this case, although it appears that plaintiff
objects only to the magistrate judge’s treatment of Dr.
Bernardo’s opinion, as discussed in full above.
To begin, the court notes that, whereas the Fourth
Circuit decided Mascio in 2015, the ALJ in this case published
his decision on May 22, 2013.

Nevertheless, as stated above,

the parties address Mascio in some detail in their briefing
before the magistrate judge.

Specifically, plaintiff asserted

that the ALJ failed to account for plaintiff’s mental
limitations when making her RFC determination.
RFC -- residual functional capacity -- “represents the
most that an individual can do despite his or her limitations or
restrictions.”
(1996).

Soc. Sec. Ruling 96-8, 61 Fed. Reg. 34464, 34476

Looking at all the relevant evidence, the ALJ must

consider a claimant’s ability to meet the physical, mental,
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sensory and other demands of any job.
416.945(a).

20 C.F.R. § 404.1545(a),

“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).
In Mascio, the Fourth Circuit observed that SSR 96-8p
“explains how adjudicators should assess residual functional
capacity.

The Ruling instructs that the residual functional

capacity assessment must first identify the individual’s
functional limitations or restrictions and assess his or her
work-related abilities on a function-by-function basis,
including the functions’ listed in the regulations.”

It is only

after the function-by-function analysis has been completed that
RFC may “be expressed in terms of the exertional levels of
work.”

Id.

Declining to adopt an unwieldy per se rule,

however, the Fourth Circuit instead adopted the Second Circuit’s
approach, in which “remand may be appropriate . . . where an ALJ
fails to assess a claimant’s capacity to perform relevant
functions, despite contradictory evidence in the record, or
where other inadequacies in the ALJ’s analysis frustrate
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meaningful review.”

Id. (citing Cichoki v. Astrue, 729 F.3d

172, 177 (2d Cir. 2013)).
The ALJ in Mascio found that the claimant had moderate
limitations in concentration, persistence, or pace.
F.3d at 637-38.

See 780

However, the ALJ utterly failed to articulate

why those limitations did not result in a limitation in the
claimant’s RFC, and instead literally trailed off mid-sentence.
Id.

Because the court could discern no such reason in the ALJ’s

incomplete decision, his analysis was found wanting, and remand
was ordered.

Id.; see also Winschel v. Comm’r of Soc. Sec., 631

F.3d 1176, 1180 (11th Cir. 2011) (cited by Mascio, 780 F.3d at
638) (“[W]hen medical evidence demonstrates that a claimant can
engage in simple, routine tasks or unskilled work despite
limitations in concentration, persistence, and pace, courts have
concluded that limiting the hypothetical to include only
unskilled work sufficiently accounts for such limitations.”).
Thus, under Mascio, an ALJ’s RFC ruling must include a
narrative as to how the evidence supports each conclusion,
citing specific evidence in the record.

780 F.3d at 736.

Where

the medical evidence shows that a claimant can carry out simple
tasks, an ALJ’s hypothetical to the vocational expert to that
effect will “sufficiently account[] for [a claimant’s] moderate
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limitation in maintaining concentration, persistence, and pace.”
Hurst v. Comm’r of Soc. Sec., 522 F. App’x 522, 525 (11th Cir.
2013) (internal quotations omitted).
Here, the ALJ found that plaintiff was able to perform
simple, routine tasks.

Tr. at 18-19, 28-29.

At plaintiff’s

hearing, the ALJ presented the vocational expert with a
hypothetical describing “work involving simple, routine
tasks[.]”

Tr. at 96.

The ALJ also asked the vocational expert

a hypothetical involving an individual “unable to sustain
sufficient concentration, pace, or persistence[.]”

Tr. at 101.

It is the case that no mention was made, during examination of
the vocational expert by the ALJ, of “moderate” limitations in
concentration, pace, or persistence.

Tr. at 93-108, although in

her decision the ALJ found such limitations.

Tr. at 19.

Dr. Cloonan’s opinion, as well as Dr. Bernardo’s notes
made prior to her August 2012 mental health assessment, support
the ALJ’s finding that plaintiff was able to perform simple,
routine tasks.

In other words, the ALJ explained why

plaintiff’s moderate limitation in concentration, persistence,
or pace at step three does not translate into a limitation in
plaintiff’s residual functional capacity, beyond restricting
plaintiff to unskilled work.

Therefore, the ALJ’s exclusion of
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moderate limitations in concentration, persistence or pace from
her hypothetical questions to the vocational expert does not
require remand.
IV.
For the reasons stated, and having reviewed the record
de novo, the court ORDERS as follows:
1.

That

the

PF&R

be,

and

it

hereby

is,

adopted

and

incorporated herein;
2.

That plaintiff’s motion for judgment on the pleadings
be, and it hereby is, denied;

3.

That

the

Commissioner’s

motion

for

judgment

on

the

pleadings be, and it hereby is, granted;
4.

That the Commissioner’s final decision be, and it hereby
is, affirmed;

5.

That judgment be, and it hereby is, granted in favor of
the Commissioner; and

6.

That this civil action be, and it hereby is, dismissed
and stricken from the docket.

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The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and the
United States Magistrate Judge.
DATED: March 30, 2016

John T. Copenhaver, Jr.
United States District Court

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