Beck v. Astrue
Filing
19
MEMORANDUM OPINION The Court finds that the Commissioner's decision Is supported by substantial evidence; therefore, by Judgment Order entered this day, the final decision of the Commissioner is Affirmed and this matter is Dismissed from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 9/7/2012. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
NORMAN BRUCE BECK,
Plaintiff,
v.
Case No.: 3:11-cv-00711
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of the Social
Security
Administration
(hereinafter
the
“Commissioner”)
denying
plaintiff’s
application for a period of disability and 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. The case is presently before the Court on the parties’
Motions for Judgment on the Pleadings. (ECF Nos. 14 and 17). Both parties have
consented in writing to a decision by the United States Magistrate Judge. (ECF Nos. 7
and 9). The Court has fully considered the evidence and the arguments of counsel. For
the reasons that follow, the Court finds that the decision of the Commissioner is
supported by substantial evidence and should be affirmed.
I.
Procedural History
Plaintiff, Norman Bruce Beck (hereinafter referred to as “Claimant”), filed for DIB
and SSI on May 7, 2007, (Tr. at 140, 148), alleging disability due to prior stroke, use of a
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pace maker, high blood pressure, high cholesterol, diabetes, knee pain, and back pain.1
(Tr. at 162). The Social Security Administration (“SSA”) denied the application initially
and upon reconsideration. (Tr. at 93, 104). On May 19, 2008, Claimant filed a written
request for a hearing before an Administrative Law Judge (“ALJ”). (Tr. at 111). The
administrative hearing was held on July 23, 2009 before the Honorable Roseanne M.
Dummer. (Tr. at 35-88). By decision dated November 27, 2009, the ALJ determined
that Claimant was not entitled to benefits. (Tr. at 13-28).
The ALJ’s decision became the final decision of the Commissioner on August 25,
2011 when the Appeals Council denied Claimant’s request for review. (Tr. at 1-4). On
October 7, 2011, Claimant brought the present civil action seeking judicial review of the
administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The Commissioner
filed his Answer and a Transcript of the Proceedings on December 12, 2011. (ECF Nos.
10 and 11). Thereafter, the parties filed their briefs in support of judgment on the
pleadings. (ECF Nos. 14 and 17). Therefore, this matter is ripe for resolution.
II.
Claimant’s Background
Claimant was 44 years old at the time of his alleged disability onset. (Tr. at 39,
42). He attended school to 12th grade, but did not graduate, and later obtained a GED.
(Tr. at 40). Claimant previously worked as a night maintenance person at McDonald’s.
(Id.). He communicates in English.
On January 27, 2007, Claimant suffered from a stroke (transient ischemic
attack), for which he sought immediate treatment. (Tr. at 289-90). During
hospitalization, he was diagnosed with diabetes, high blood pressure (hypertension),
Subsequently, Claimant alleged additional mental impairments including “depression, short term
memory, anger problems, difficulty dealing with people, problems with crowds and strangers, and anxiety
that has affected him throughout his life.” (Tr. at 19).
1
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high blood cholesterol (hyperlipidemia), and a complete heart block, which was
discovered after Claimant was asystole for over five seconds. (Tr. at 286, 290). Claimant
alleged that he became unable to work because of his disabling condition on February
28, 2007, stating that “[a]fter I got out of the hospital, I wasn’t very much good at all.
(Tr. at 140, 148). Since then, Claimant has undergone a myriad of medical examinations
and assessments related to his cardiovascular status and other physical ailments. In
2007, Claimant and his family lost their home and moved into his wife’s parents’ home.
(Tr. at 406). In December of 2007, Claimant commenced mental health treatment at
Prestera Center for depression and anxiety. (Tr. at 411-12). Claimant continued his
mental health treatment at least through the date of his administrative hearing.2 (Tr. at
682).
III.
Relevant Medical Records
The Court has reviewed the Transcript of Proceedings in its entirety including the
medical records in evidence. Given that Claimant’s challenges primarily involve his
mental health impairments, the undersigned summarizes below Claimant’s mental
health treatment and evaluations to the extent that they are relevant to the issues in
dispute.
A. Prestera Mental Health Center Records
1. Treatment Notes and Mental Status Evaluations
On December 11, 2007, Claimant sought mental health treatment from Prestera
Mental Health Centers (“Prestera”). (Tr. at 406). His chief complaints were depression
and anxiety, which had “bec[o]me prominent after becoming injured, out of work, and
losing his home.” (Tr. at 406). Claimant also “report[ed] experiencing paranoid and
The last date for which a Prestera record exists is August 28, 2009, (Tr. at 682), while the last date for
which other records in the transcript exist is October 8, 2009. (Tr. at 686-91).
2
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delusional thoughts when in public.” (Tr. at 406). In his initial mental status evaluation,
Claimant reported insomnia, diminished appetite, no suicidal or homicidal ideation,
some delusions/paranoia, and difficulty remembering day-to-day activities. (Tr. at 40910). The access center clinician described Claimant as “within normal limits” or
otherwise unexceptional in his appearance (hygiene, posture, gait, dress), sensorium,
attitude, eye contact, attention span, impulse control, mood, affect, intellectual
functioning, insight, and judgment. (Tr. at 409-10).
The record shows that Claimant met with a Prestera therapist roughly once a
month for discussion-based therapy sessions, while a physician’s assistant managed
Claimant’s medication with appointments occurring every few months: Claimant met
with Prestera therapist Nicole Wilson on January 8, January 23, March 4, March 26,
April 16, June 3, July 3, August 1, September 5, October 1, November 14, and December
18 of 2008, and January 16 or 2009. (Tr. at 404, 405, 493, 527, 540, 542, 545, 645, 647,
650-51 652, 655, at 657). He met with Prestera therapist Marybeth Smith on February
11, May 13, July 8, August 4, and August 18 of 2009, (Tr. at 659, 673-74, 676, 678, and
680), and with Prestera Physician’s Assistant (PA) Sarah Rodes on February 9, March 7,
May 2, July 3, October 1, and December 10 of 2008, and March 20, June 30, August 29
of 2009. (Tr. at 402-03, 491, 541, 544, 649, 654, 672, 675, and 682).
In all of therapist Wilson’s session notes, she described Claimant’s mental status
as “within normal limits” or as showing “no significant change from last visit.” (Tr. at
404, 405, 493, 527, 54, 542, 645, 647, 650, 652, 655, and 657). Similarly, therapist
Smith initially reported all of Claimant’s mental status attributes as “unremarkable,”
describing him as “oriented x4” and a danger to none. (Tr. at 659). In all subsequent
session notes, Smith described Claimant’s mental status as simply “alert and oriented
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x4.” (Tr. at 659, 673-74, 676, 678, and 680). Likewise, aside from periodically
presenting as anxious or depressed in mood, PA Rodes’s assessments of Claimant’s
mental status were wholly unexceptional. (Tr. at 402-03, 491, 541, 544, 649, 654, 672,
675, and 682).
Notes from therapist Wilson’s first meeting with Claimant on January 8, 2008
reflect that his primary difficulty was in coping with recent changes in his life, including
chronic pain, loss of his home, moving in with parents-in-law, and having no income.
(Tr. at 405). These concerns, as well as several deaths in the family, turned out to be
recurring themes throughout the course of Claimant’s treatment at Prestera as
documented in the following treatment records:
Claimant “has low self esteem and his pride has been injured by his
inability to work and provide for his family.” (Tr. at 404)
Claimant “is doing fair but continues to have some problem areas to
discuss, most are related to his physical health and relational problems.”
(Tr. at 450)
Claimant reports that he “had been doing ok” and had not had any major
episodes with his father-in-law. (Tr. at 542)
Claimant’s “physical health plays a major role in the continuation of his
depression” and “the family also struggles a great deal financially.” (Tr. at
545)
Claimant has “been supportive of his wife” whose mother had recently
become terminally ill. (Tr. at 645)
Claimant reports that he had been “spending most of his time taking care
of his children and helping his wife” handle the grief of losing her mother.
(Tr. at 647)
Claimant “feels like he should be doing more to support his family and
becomes depressed when he realizes that he may never be able to work
again.” (Tr. at 650)
Claimant explores coping options for the unexpected loss of his mother.
(Tr. at 652)
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Claimant reports feeling “moody” and “like a failure.” (Tr. at 655)
Claimant reports that he and his wife were mostly “doing okay,” though he
still grieves for his mother. (Tr. at 657)
Claimant reports that not being able to work has been a difficult transition
for him. (Tr. at 659)
Claimant reports “frustration with not being able to work and provide for
the family” and about frequent arguments with his wife. (Tr. at 676)
Claimant reports frequent arguments with his wife and feelings of
helplessness due to not being able to work and not bringing in any income.
(Tr. at 678)
Claimant reports feeling emasculated. (Tr. at 680)
However, the use of medication and the development of coping strategies appeared to
have had some positive effect on Claimant’s depression and anxiety as documented
below:
Claimant “discussed options for change and coping.” (Tr. at 404-05)
Claimant reports improvement since taking Cymbalta. (Tr. at 491)
Claimant “feels that Cymbalta has helped his depression and he is starting
to feel less anger.” (Tr. at 493)
Claimant had “shown some minor improvements with the regimen he is
taking.” (Tr. at 540)
Claimant “enjoys taking walks and often goes and sits outside when he
needs to calm down.” (Tr. at 542)
Claimant reports that “his medication has been helping him,” and the
therapist observes that Claimant had “learned some good coping skills
including walking that have helped him stay calmer.” (Tr. at 645)
Claimant reports that he is “much better at handling stress when he has
Ativan to help him.” (Tr. at 647)
Claimant reports that medication has helped. “I don’t have the totally
hopeless/helpless feeling any more.” (Tr. at 649)
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Claimant acknowledges that medication is working, stating “I have been
wondering if Cymbalta was helping – and I know that it is. Because I
forgot mine when I went out of town.” (Tr. at 654).
2. Internal Assessments by Prestera Staff
Claimant’s therapists also completed periodic internal assessments of Claimant’s
mental health on December 11, 2007; March 27, July 3, October 3 of 2008; and March
11 of 2009. (Tr. at 411-18, 528-39, 546-57, 632-43, 660-71).
On December 11, 2007, Clinician David Hendricks completed an initial internal
assessment of Claimant. (Tr. at 411-18). In the “Functional Status/Treatment Plan”
portion of the internal assessment, Clinician Hendricks indicated the following levels of
required assistance: “School–Independent with Past History of Functional Deficit;
Activity of Daily Living–With Minimal Assistance; Maintain Relationships–With
Minimal Assistance; Self Administer Medications–No History of Functional Deficit/Not
Applicable; Maintain Personal Safety–No History of Functional Deficit/Not Applicable;
Access Other Services–No History of Functional Deficit/Not Applicable.” (Tr. at 416).
Clinician Hendricks diagnosed Claimant with “Major Depressive Disorder Recurrent–
Moderate” and assigned him a Global Assessment of Functioning (GAF) score of 55.3
(Tr. at 417).
Therapist Wilson completed the next three assessments of Claimant, the results
of which remained largely the same. In the “Functional Status/Treatment Plan” section
of each assessment, Wilson reported the same levels of required assistance as listed in
the initial internal assessment. (Tr. at 533-34, 551-52, and 637-39). In the “Adult
3 The GAF scale is a tool for rating a person’s overall psychological functioning on a scale of 0-100. This
rating tool is regularly used by mental health professionals and is recognized by the American Psychiatric
Association in its Diagnostic and Statistical Manual of Mental Disorders (DSM) IV-Text Revision (4th
ed.). A score of 51-60 indicates moderate symptoms OR moderate difficulty in social, occupational, or
school functioning.
.
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MH/SA Functional Assessment Instrument” section of each assessment, therapist
Wilson reported Mild Dysfunction with respect to Claimant’s capacity for “Self Care”
and “Activities of Community Living;” Moderate Dysfunction with respect to Claimant’s
capacity for “Social Interpersonal and Family” interactions and “Concentration and Task
Performance;” and No Dysfunction with respect to “Maladaptive, Dangerous and
Impulsive Behaviors” of the Claimant. (Tr. at 534-37, 552-55, and 639-41). These
categorical determinations were based upon a series of questions regarding specific
functional capacities of the Claimant. (Id.) Finally, in each assessment, Wilson
diagnosed Claimant with “Major Depressive Disorder Recurrent–Moderate” and
“Generalized Anxiety Disorder,” and assigned him a GAF score of 55. (Tr. at 538, 556,
and 642).
Therapist Smith completed the final internal assessment of Claimant. (Tr. at 66071). In the “Functional Status/Treatment Plan” section of each assessment, Smith
reported the same levels of required assistance as in the initial internal assessment. (Tr.
at 665-66). In the “Adult MH/SA Functional Assessment Instrument” section of each
assessment, Smith reported Mild Dysfunction with respect to Claimant’s “Self Care”;
Moderate Dysfunction with respect to Claimant’s “Activities of Community Living,”
“Social Interpersonal and Family” interactions and “Concentration and Task
Performance;” and No Dysfunction with respect to “Maladaptive, Dangerous and
Impulsive Behaviors” of the Claimant. (Tr. at 666-69). Again, these determinations were
based upon a series of questions regarding specific functional capacities of the Claimant.
(Tr. at 666-69). Smith diagnosed Claimant with “Major Depressive Disorder Recurrent–
Severe without Psychotic” and “Generalized Anxiety Disorder,” but assigned him the
same GAF score of 55 as previously determined. (Tr. at 670-71).
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3. RFC Assessments by Prestera Staff
On February 26, 2008, PA Rodes completed a Mental Impairment Questionnaire
(RFC and Listings).4 (Tr. at 419-26). Rodes reported moderate limitation in Claimant’s
ability to: understand and remember very short and simple instructions, carry out very
short and simple instructions, make simple work-related decisions, and be aware of
normal hazards and take appropriate precautions. (Tr. at 423-25). With respect to all
other functional areas, Rodes reported marked limitation in Claimant’s abilities. (Id.).
On July 15, 2009, PA Rodes completed another Mental Impairment Questionnaire (RFC
and Listings).5 (Tr. at 497-502). Rodes characterized Claimant as “moderately limited”
in his ability to: remember work-like procedures, understand and remember very short
and simple instructions, carry out very short and simple instructions, sustain an
ordinary routine without special supervision, make simple work-related decisions, ask
simple questions or request assistance, maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness, be aware of normal hazards and
take appropriate precautions, and set realistic goals or make plans independently of
others. (Tr. at 499-502). Rodes characterized Claimant as “markedly limited” in his
ability to: understand and remember detailed instructions, carry out detailed
instructions, maintain attention for extended periods, work in coordination or proximity
without being unduly distracted by them, interact appropriately with the general public,
accept instructions and respond appropriately to criticism from supervisors, get along
with co-workers or peers without unduly distracting them or exhibiting behavioral
extremes, and travel in unfamiliar places or use public transportation. (Id.). Rodes
4
Therapist Wilson also signed the questionnaire. (Tr. at 426).
5
Therapist Smith also signed the questionnaire. (Tr. at 502).
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characterized Claimant as “extremely limited” in his ability to: maintain regular
attendance and be punctual within customary tolerances, 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, and respond appropriately to change in a routine work setting. (Id.).
Additionally, on July 25, 2009, therapist Smith signed a letter addressed “To
Whom It May Concern,” in which she described Claimant’s diagnosis and the impact of
his symptoms on several areas of his life. (Tr. at 496). Based upon both Claimant’s
reports and her own observations, Smith concluded that “[d]ue to the severity of his
symptoms and diagnosis, [Claimant] would have great difficulty interacting and
appropriately performing tasks in a work setting.” (Id.).
B. Non-Prestera Mental Health Assessments
1. Agency Assessments
On May 5, 2008, Elizabeth Durham, MA, Licensed Psychologist, completed a
psychological evaluation at the request of the West Virginia Disability Determination
Service. (Tr. at 449-53). As part of her report, Ms. Durham conducted a clinical
interview and mental status examination. (Tr. at 449). Ms. Durham found that
Claimant’s attitude and behavior, social interaction, speech, orientation, thought
processes, thought content, perception, insight, judgment, immediate memory, recent
memory, remote memory, concentration, and psychomotor behavior were all within
normal limits or otherwise appropriate, though his mood was dysphoric and his affect
was restricted. (Tr. at 451). Claimant denied suicidal or homicidal ideation. (Id.). Ms.
Durham diagnosed Claimant with depressive disorder not otherwise specified, and
anxiety disorder not otherwise specified based upon Claimant’s reports of depressed
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mood and frequent anxiety and worry. (Tr. at 451-52). Ms. Durham then reviewed
Claimant’s daily activities, which consisted of watching television, taking care of his 3year-old, eating, and taking medicine. (Tr. at 452). Ms. Durham concluded that
Claimant’s social functioning, concentration, persistence, and pace were all within
normal limits. (Id.).
On May 12, 2008, Timothy Saar, Ph.D, completed a Psychiatric Review
Technique at the request of the Social Security Administration. (Tr. at 455-68). Dr. Saar
found that Claimant suffered from affective and anxiety-related disorders, but that
Claimant’s mental impairments were not severe. (Tr. at 455). Dr. Saar diagnosed
Claimant with depression not otherwise specified and anxiety disorder not otherwise
specified. (Tr. at 458-60). Dr. Saar evaluated Claimant’s functional limitations and
found that Claimant suffered from no functional limitations or episodes of extended
decompensation. (Tr. at 465-66). Further, Dr. Saar found Claimant to be only partially
credible and that the medical record did not support Claimant’s disability claim. (Tr. at
467). Dr. Saar concluded that Claimant could manage basic activities of daily living and
social interactions with mild limitations. (Id.).
On September 30, 2009, Lisa Tate, MA, Licensed Psychologist, performed a
second psychological evaluation at the request of the West Virginia Disability
Determination Service. (Tr. at 686). As part of her report, Ms. Tate completed a clinical
interview, mental status examination, and an RFC assessment. (Tr. at 683-90). Ms. Tate
found that Claimant’s orientation, mood, affect, thought processes, thought content,
perception, insight, immediate memory, remote memory, and psychomotor behavior
were all within normal limits or otherwise appropriate, but that Claimant’s recent
memory and concentration were mildly deficient. (Tr. at 689). Claimant denied suicidal
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or homicidal ideation. (Id.). Ms. Tate diagnosed Claimant with “anxiety disorder not
otherwise specified with features of panic” and “major depressive disorder, single
episode, moderate, chronic” based upon Claimant’s self-report of related symptoms.
(Id.). Claimant described daily activity consisting of watching television; weekly
activities consisting of sitting outside, taking a shower, and visiting his friend; monthly
activities consisting of doing laundry, cutting grass with a riding mower, going to the
grocery store, and attending treatment appointments related to both his physical and
mental health. (Tr. at 690). Ms. Tate described Claimant’s social functioning,
persistence, and pace as within normal limits, but noted his concentration was mildly
deficient. (Id.).
2. Claimant-Referral Assessment
On July 5, 2008, Sheila Emerson Kelly, MA, Licensed Psychologist, completed a
psychological evaluation at the request of Claimant’s attorney. (Tr. at 470). As part of
her report, Ms. Kelly conducted a clinical interview and a mental status examination,
completed a RFC assessment, and administered the following psychological tests:
Minnesota Multiphasic Personality Inventory-2 (MMPI-2), Millon Clinical Multiaxial
Inventory-III (MCMI-III), Wide Range Achievement Test-4 (WRAT-4), and Beck
Depression Inventory-II. (Id.).
In her written report, Ms. Kelly provided an overview of Claimant’s background,
including medical and family history. (Tr. at 470-73). She noted that Claimant had four
children living at home, ages 23, 8, 6, and 3. Claimant, his wife, and his children moved
in with his in-laws after Claimant stopped working and he now spent his days watching
the younger children. Ms. Kelly described Claimant’s daily activities as including driving
occasionally, going outside with his kids to “watch after them” and “play a little ball with
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them,” visiting a friend approximately once a week and teaching him to restore old
trucks, listening to music, and watching television. (Tr. at 474-75). After reviewing the
history, Ms. Kelly documented the results of the mental status examination. She
recorded that Claimant described sleeping at varying hours but estimated sleeping
around 6 to 7 hours per day and reported that “his mood is irritable and that he has an
explosive temper which is somewhat relieved by medications.” (Tr. at 475). Ms. Kelly
noted that Claimant was depressed and anxious but denied suicidal ideation. (Id.). She
also observed that he “displays some social anxiety and paranoia accompanied by
problems with authority.” (Id.). Next, Ms. Kelly summarized the results of the tests. (Tr.
at 475-76). On the WRAT-4, Claimant’s in Word Reading and Math Computations
corresponded with “Low Average” functioning levels, which Ms. Kelly stated were “fair
considering his educational background and certainly adequate for day-to-day affairs.”
(Tr. at 475). On the Beck Depression Inventory-II test, Claimant’s score reflected severe
levels of depression. (Id.). Significantly, both the MMPI-2 and the MCMI-III tests were
considered invalid, which Ms. Kelly opined was “probably because of symptom
magnification on [Claimant’s] part.” (Id.). Ms. Kelly then outlined the bases for her RFC
assessment. (Tr. at 476-77). She reiterated that Claimant’s activities of daily living
primarily consisted of babysitting his three younger children, helping a friend work on
his truck, and driving rarely. (Tr. at 476). Ms. Kelly noted that Claimant’s social circle
was limited due to his paranoia and social anxiety, as well as his low self-esteem. (Id.).
However, Ms. Kelly observed “no significant problems in attention and concentration”
despite acknowledging that Claimant appeared to be depressed and socially anxious.
(Id.). Ms. Kelly also opined that “the number of vocational choices available to him have
narrowed somewhat” due to Claimant’s health problems, including stroke and
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installation of a pacemaker. (Tr. at 476-77). Ms. Kelly diagnosed Claimant with
depressive disorder not otherwise specified; anxiety disorder not otherwise specified;
and avoidant, dependent, and paranoid personality traits but ruled out personality
disorder. (Tr. at 477).
Finally, in her RFC assessment, Ms. Kelly designated Claimant as “slightly
limited” in his abilities to: remember work-like procedures, understand and remember
very short and simple instructions, carry out very short and simple instructions, sustain
an ordinary routine without special supervision, make simple work-related decisions,
ask simple questions or request assistance, maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness, and respond appropriately to
changes in a routine work setting. (Tr. at 479-80). Ms. Kelly designated Claimant as
“moderately limited” in his abilities to: understand and remember detailed instructions,
carry out detailed instructions, maintain attention for extended periods, maintain
regular attendance and be punctual within customary tolerances, 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, interact appropriately with the general public, and get along with co-workers or
peers without unduly distracting them or exhibiting behavioral extremes. (Id.). Ms.
Kelly designated Claimant as “markedly limited” in his abilities to: work in coordination
or proximity to others without being unduly distracted by them, and accept instructions
and respond appropriately to criticism from supervisors. (Id.). She reported no extreme
limitations. (Id.).
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IV.
Summary of ALJ’s Findings
Under 42 U.S.C. § 423(d)(5), a claimant seeking 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 five step sequential evaluation process
for the adjudication of disability claims. If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§
404.1520, 416.920. First, the ALJ determines whether a claimant is currently engaged in
substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). Second, if the claimant
is not gainfully employed, then the inquiry is whether the claimant suffers from a severe
impairment. Id. §§ 404.1520(c), 416.920(c). Third, if the claimant suffers from a severe
impairment, the ALJ determines whether this 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 the impairment does, then the claimant is found
disabled and awarded benefits.
However, if the impairment does not, then the adjudicator must determine the
claimant’s residual functional capacity (“RFC”), which is the measure of the claimant’s
ability to engage in substantial gainful activity despite the limitations of his or her
impairments. Id. §§ 404.1520(e), 416.920(e). In the fourth step, the ALJ ascertains
whether the claimant’s impairments prevent the performance of past relevant work. Id.
§§ 404.1520(f), 416.920(f). If the impairments do prevent the performance of past
relevant work, then the claimant has established a prima facie case of disability and the
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burden shifts to the Commissioner to prove the final step. McLain v. Schweiker, 715
F.2d 866, 868-69 (4th Cir. 1983). Under the fifth and final inquiry, the Commissioner
must demonstrate that the claimant is able to perform other forms of substantial gainful
activity, while taking into account the claimant’s remaining physical and mental
capacities, age, education, and prior work experiences. Id. §§ 404.1520(g), 416.920(g);
see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). The Commissioner must
establish two things: (1) that the claimant, considering his or her age, education, skills,
work experience, and physical shortcomings has the capacity to perform an alternative
job, and (2) that this specific job exists in significant numbers in the national economy.
McLamore v. Weinberger, 538 F.2d. 572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the Social Security Administration
(“SSA”) “must follow a special technique at every level in the administrative review.” 20
C.F.R. §§ 404.1520a, 416.920a. First, the SSA evaluates the claimant’s pertinent signs,
symptoms, and laboratory results to determine whether the claimant has a medically
determinable mental impairment. If such impairment exists, the SSA documents its
findings. Second, the SSA rates and documents the degree of functional limitation
resulting from the impairment according to criteria specified in 20 C.F.R. §§
404.1520a(c), 416.920a(c). Third, after rating the degree of functional limitation from
the claimant’s impairment(s), the SSA determines the severity of the limitation. A rating
of “none” or “mild” in the first three functional areas (activities of daily living, social
functioning, and concentration, persistence or pace) and “none” in the fourth (episodes
of decompensation) will result in a finding that the impairment is not severe unless the
evidence indicates that there is more than minimal limitation in the claimant’s ability to
do basic work activities. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). Fourth, if the
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claimant’s impairment is deemed severe, the SSA compares the medical findings about
the severe impairment and the rating and degree and functional limitation to the criteria
of the appropriate listed mental disorder to determine if the severe impairment meets or
is equal to a listed mental disorder. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2).
Finally, if the SSA finds that the claimant has a severe mental impairment, which
neither meets nor equals a listed mental disorder, the SSA assesses the claimant’s
residual function. 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3). The Regulation further
specifies how the findings and conclusion reached in applying the technique must be
documented at the ALJ and Appeals Council levels as follows:
The decision must show the significant history, including examination and
laboratory findings, the functional limitations that were considered in
reaching a conclusion about the severity of the mental impairment(s). The
decision must include a specific finding as to the degree of limitation in
each functional areas described in paragraph (c) of this section.
20 C.F.R. §§ 404.1520a(e)(2), 416.920a(e)(2).
In this case, the ALJ determined as a preliminary matter that Claimant met the
insured status requirement of the Social Security Act through December 31, 2010. (Tr. at
16, Finding No. 1). The ALJ then determined that Claimant satisfied the first inquiry
because he had not engaged in substantial gainful activity since February 28, 2007, the
alleged disability onset date. (Id., Finding No. 2). Under the second inquiry, the ALJ
found that Claimant suffered from the severe impairments of: status post
cerebrovascular accident with no residual symptoms; diabetes mellitus; hypertension;
hyperlipidemia; third degree heart block; sinus pause; low back pain; chronic left knee
pain; compression fracture; depressive disorder; and an anxiety disorder. (Id., Finding
No. 3). The ALJ considered Claimant’s past history of ingrown toenails but found this
medical impairment to be non-severe. (Id.) The ALJ also found that Claimant’s
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purported “avoidant, dependent, and paranoid personality traits” and past incidence of
abdominal pain were not medically determinable impairments. (Id.).
At the third inquiry, the ALJ concluded that Claimant’s impairments did not
meet or equal the level of severity of any impairment contained in the Listing. (Id.,
Finding No. 4). The ALJ then found that Claimant had the following RFC:
[C]laimant has the residual functional capacity to perform light work ...
except the claimant can never climb ladders, ropes or scaffolds. He can
only occasionally stoop, kneel, crouch, and crawl. He must avoid
concentrated exposure of cold, heat, vibration, and the hazards of work
involving dangerous moving machinery and heights. The claimant is
limited to frequent, but not constant manipulation with the hands.
Further, he is limited to one to two step simple type work and tasks. In
addition, the claimant is limited to brief and superficial contact with the
public.
(Tr. at 18, Finding No. 5). As a result, under the fourth inquiry, Claimant was found
unable to return to his past relevant employment. (Tr. at 25, Finding No. 6). The ALJ
noted that Claimant was 44 years old at the time of the alleged disability onset date,
which qualified him as a “younger individual age 18-49.” (Tr. at 26, Finding No. 7). He
had a high school education and could communicate in English. (Id., Finding No. 8).
The ALJ found that transferability of job skills was not an issue, because the MedicalVocational Rules supported a finding of “not disabled” regardless of transferability of
skills. (Id., Finding No. 9). The ALJ then considered all of these factors and, relying
upon the testimony of a vocational expert, determined that Claimant could perform the
various occupations that existed in significant numbers in the national and regional
economy. (Tr. at 26). At the unskilled, light level, Claimant could function as a night
guard, product inspector, and mail sorter; at the unskilled, sedentary level, Claimant
was capable of performing jobs such as package machine tender, product inspector, and
surveillance monitor. (Tr. at 27, Finding No. 10). On this basis, the ALJ concluded that
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Claimant was not under a disability as defined by the Social Security Act. (Tr. at 28,
Finding No. 11).
V.
Claimant’s Challenges to the Commissioner’s Decision
Claimant raises four challenges to the Commissioner’s decision. First, Claimant
argues that the ALJ failed to properly consider the opinions of Claimant’s treating
mental health providers. (Pl.’s Br. at 15). Second, Claimant argues that the ALJ did not
properly consider the combined effect of all of Claimant’s impairments. (Pl.’s Br. at 22).
Third, Claimant argues that the ALJ did not properly evaluate lay witness testimony.
(Pl.’s Br. at 29). Finally, Claimant argues that the ALJ’s hypothetical question to the
vocational expert was incomplete. (Pl.’s Br. at 34).
VI.
Scope of Review
The issue before this Court is whether the final decision of the Commissioner
denying Claimant’s application for benefits is supported by substantial evidence. The
Fourth Circuit has defined substantial evidence 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, 483 F.2d at 776 (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). The
Court will not re-weigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Id. Instead, the Court’s duty is
limited in scope; it must adhere to its “traditional function” and “scrutinize the record as
a whole to determine whether the conclusions reached are rational.” Oppenheim v.
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Finch, 495 F.2d 396, 397 (4th Cir. 1974). Thus, the ultimate question for the Court is not
whether the Claimant is disabled, but whether the decision of the Commissioner that the
Claimant is not disabled is well-grounded in the evidence, bearing in mind that “[w]here
conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [Commissioner].” Walker v.
Bowen, 834 F.2d 635, 640 (7th Cir. 1987).
The Court has considered each of Claimant’s challenges in turn and finds them
unpersuasive. To the contrary, having scrutinized the record as a whole, the Court
concludes that the decision of the Commissioner finding Claimant not disabled is
supported by substantial evidence.
VII.
Analysis
A.
ALJ’s Consideration of the Prestera RFC Assessments
Claimant contends that the ALJ failed to properly consider the opinion of
Prestera Physician’s Assistant (“PA”) Sarah Rodes, in light of the ALJ’s statements that:
Ms. Rodes’ opinions are based on the claimant’s subjective complaints and
inconsistent with the overall record, as treatment notes indicate merely
minor problems in functional areas. It would seem reasonable that were
the claimant impaired to the extreme extent described, aggressive
treatment modalities may be advisable. . . More importantly, Ms. Rodes’
opinions are also internally inconsistent and the record does not reflect a
significant decline in the claimant’s ability to function mentally.
(Pl.’s Br. at 15-20 (citing Tr. at 25)).6 Furthermore, Claimant argues that the ALJ should
have sought clarifying information from the Prestera treatment providers to the extent
that their opinions created an ambiguity in the record. (Pl.’s Br. at 21). In response, the
Claimant also objects that the ALJ ignored the fact therapists Nicole Wilson and Marybeth Smith
supported Rodes’s RFC assessments. (Pl.’s Br. at 15 n.8). However, it appears that Rodes and a therapist
prepared each assessment jointly, as both Rodes and Wilson signed the first assessment while Rodes and
Smith signed the second assessment. (Tr. at 426, 502). To the extent that each RFC assessment was
prepared jointly by Rodes and a therapist, each assessment is treated as a single opinion. Because the ALJ
attributed the Prestera RFC assessments to Rodes, the undersigned does so as well.
6
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Commissioner argues that the therapists and physician’s assistant are not “acceptable
medical sources” whose opinions merit deference under the regulations. (Def. Br. at 13).
The Commissioner argues further that the ALJ had no duty to seek clarification of the
opinions of the counselors and physician’s assistant because they were not unclear or
ambiguous. (Def. Br. at 15). Rather, the Commissioner argues that the ALJ properly
weighed and discounted the opinions of the counselors and physician’s assistant as
inconsistent and unsupported by the evidence of the record. (Id.).
Although therapists and nurse practitioners do not constitute “acceptable
medical sources” to establish whether a claimant has a medically determinable
impairment, they are considered “other sources” whose opinions may be used to show
the severity and effect of a claimant’s impairments on his ability to work. 20 C.F.R. §§
404.1513 and 416.913. Social Security Ruling 06-03p provides guidance on how the
opinions of “other sources,” including therapists and physicians’ assistants should be
considered on the issue of disability. SSR 06-03p. When weighing opinions offered by
sources who are not “acceptable medical sources,” the ALJ should consider the same
factors that apply to the medical opinions of “acceptable medical sources,” which
include: (1) the length of time the source has known the claimant and the frequency of
their contact; (2) the consistency of the source’s opinion with the other evidence; (3) the
degree to which the source provides supportive evidence; (4) how well the source
explains his or her opinion; (5) whether the source has an area of specialty or expertise
related to the claimant’s impairments; and (6) any other factors tending to support or
refute the opinion. Id. at *4. “The fact that a medical opinion is from an ‘acceptable
medical source’ is a factor that may justify giving that opinion greater weight than an
opinion from a medical source who is not an ‘acceptable medical source’ because. . .
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‘acceptable medical sources’ are the more qualified health care professionals.” Id. at *5
(internal quotations omitted). Ultimately, however, “[e]ach case must be adjudicated on
its own merits based on a consideration of the probative value of the opinions and a
weighing of all the evidence in that particular case.” Id.
1.
Discounting the RFC Opinion of PA Rodes
Claimant raises a number of objections to the ALJ’s treatment of PA Rodes’
opinions. First, Claimant disputes that PA Rodes’ opinions were based on “subjective
complaints.” (Pl.’s Br. at 16). According to Claimant, “his counselor specifically and
unequivocally stated that the determination of [Claimant’s] symptoms were based on
‘observation’ in a clinical setting,” which he therefore contends “constituted objective
evidence of [Claimant’s] mental illness.” (Id.). However, Claimant has failed to specify
where in the record this unequivocal statement exists, and the undersigned has been
unable to locate such an assertion. On the contrary, the Prestera medical records are
replete with direct quotes from the Claimant and notes specifically referring to
Claimant’s own “reports” of various symptoms and difficulties. (Tr. at 402, 404, 405,
406, 491, 493, 520, 521, 522, 524, 527, 540, 541, 542, 544, and 545). Moreover, in a
letter dated July 15, 2009, Prestera therapist Mary Smith cites Claimant’s own reports of
family arguments and minimal contact with the outside to bolster her conclusion that
Claimant “would have great difficulty interacting and appropriately performing tasks in
a work setting.” (Tr. at 496). The record supports the ALJ’s statement that PA Rodes’
opinions were based on Claimant’s subjective complaints.
Second, Claimant argues that the record reflects “frequent evidence of significant
problems,” rather than merely minor problems in functional areas. (Pl.’s Br. at 16).
Claimant catalogs a number of instances throughout the Prestera records in support of
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his claim. (Id. at 16-17). However, as discussed above, many of the cited records reflect
subjective complaints made by the Claimant, rather than observations of his therapists.
(Id.). Moreover, many of the cited records refer primarily to Claimant’s emotional state,
rather than the effect of his mental impairments on his residual functional capacity.
(Id.). In contrast, therapist observations of Claimant’s mental status during counseling
sessions do in fact reflect minor problems in functional areas. (Tr. at 402-03, 404, 405,
409-10, 491, 493, 520, 521, 524, 527, 540, 541, 542, 544, 545, 644, 645-46, 647, 649,
652, 654, 655, 657, 659, 672, 673, 675, 676, 678, 680, 682). While Claimant frequently
presented as depressed or anxious in mood and affect, other mental status metrics were
consistently mild or otherwise unremarkable, as documented in the treatment record:
“Appearance–casually dressed; Mood and Behavior–calm; Attitude–
pleasant; Thought Content–No suicidal thoughts; Thought Process–
coherent; Sensorium–fully oriented; Mood–anxious; Affect–congruent
with mood; Perceptual disturbances–[Blank]; Memory–reports
decrease in short term memory; Concentration and Calculations–fair;
Intelligence–average; Insight and Judgment–fair” (Tr. at 402-03)
“Sensorium–fully oriented; Mood–anxious at times; Affect–[Blank];
Speech–regular rate and tone; Thought form–coherent; Content–
denies any suicidal or homicidal ideation; Hallucinations–denies a/v
hallucination; Motor activity–fidgets at times” (Tr. at 491)
“Sensorium–No change since last eval; Mood–anxious; Affect–
congruent with mood; Speech–regular rate and tone; Thought form–
coherent; Content–no suicidal thoughts; Hallucinations–No a/v
hallucination; Motor activity–[blank]” (Tr. at 541)
“Sensorium–fully oriented; Mood–depressed; Affect–restricted;
Speech–regular rate and tone; Thought form–coherent; Content–
denies any suicidal thoughts/homicidal thoughts; Hallucinations–
denies having a/v hallucination; Motor activity–appropriate” (Tr. at
544)
Reporting “no change since last eval” in Claimant’s Mental Status, and
noting that he denied having any suicidal thoughts or a/v
hallucinations (Tr. at 649)
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Claimant’s mood as euthymic (good good), but otherwise reporting “no
change since last eval” in Claimant’s Mental Status (Tr. at 654)
Reporting “no change since last eval” in Claimant’s Mental Status and
noting that he denied having suicidal thoughts or a/v hallucinations
(Tr. at 672)
“Sensorium–no change since last eval; Mood–ok; Affect–congruent
with mood; Speech–coherent; Thought form–[Blank]; Content–No
suicidal ideations/homicidal ideations; Hallucinations–None; Motor
activity–taps leg” (Tr. at 675)
“Sensorium–no change since last eval; Mood–euthymic; Affect–no
change since last eval; Speech–no change since last eval; Thought
form–Coherent;
Content–denies
suicidal
ideations/homicidal
ideations; Hallucinations–None; Motor activity–no change since last
eval” (Tr. at 682)
Third, Claimant objects to the ALJ’s statements expressing skepticism as to PA
Rodes’s opinion of Claimant’s limitations. Specifically, Claimant objects to the ALJ’s
conjecture that more “aggressive treatment modalities may be advisable” were
Claimant’s impairment as severe as he claimed. (Pl.’s Br. at 20). Claimant asserts that
“no medical report suggests that plaintiff has not been pursuing a valid course of
treatment” from Prestera Mental Health between December 2007 and July 2009.
Additionally, while Claimant concedes that there was no significant decline in his
condition, he argues that there was also no significant improvement, and that his
condition was “disabling throughout the relevant time period.” (Pl.’s Br. at 20).
However, the ALJ’s rationale for discounting PA Rodes’ opinions appears to be based
upon the evidence that PA Rodes’ assessment is inconsistent with both the treatment
notes which formed the basis of her assessment of Claimant’s limitations, as well as with
the overall record. (Tr. at 25).
There is ample evidence in the record demonstrating that PA Rodes’ opinions of
Claimant as “markedly limited” and “extremely limited” in various residual functional
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areas were internally inconsistent with the objective evidence of record treatment notes.
The record does reflect that Claimant suffered from depression and some anxiety, for
which he received monthly discussion-based therapy sessions and medication
prescribed on a bimonthly or quarterly basis. However, aside from Claimant’s mood and
affect, the mental status observations by both therapists and PA Rodes consistently
reflect relatively mild, if any, other mental limitations during therapy and medication
sessions. (Tr. at 402-03, 404, 405, 491, 493, 527, 540, 541, 542, 544, 645, 647, 649, 650,
652, 654, 655, 657, 659, 672, 673-74, 675, 676, 678, and 682). Additionally, the
“Functional Status/Treatment Plan” section of every internal assessment indicated that
Claimant required only “Minimal Assistance” in conducting “Activity of Daily Living”
and “Maintain Relationships;” had “No History of Functional Deficit” in his ability to
“Self Administer Medications,” “Maintain Personal Safety,” or “Access Other Services;”
and was “Independent with Past History of Functional Deficit” as to “School[ing].” (Tr.
at 416, 533-34, 551-52, 637-39, 665-66). Moreover, the most generous reading of the
“Adult MH/SA Functional Assessment Instrument” of Claimant’s internal assessments
indicates only moderate dysfunction as to some functional categories based upon
specific questions regarding Claimant’s functional capacities. (Tr. at 534-37, 552-55,
639-41, and 666-69). This is consistent with Claimant’s Global Assessment of
Functioning (GAF) Score of 55, which did not change throughout the entire course of his
treatment at Prestera. (Tr. at 417, 538, 556, 642, and 671).
The record also reflects that PA Rodes’s RFC Assessments are inconsistent with
all of Claimant’s other mental health evaluations, including the one that Claimant
himself initiated with Ms. Kelly. First, consultative examiner Ms. Durham conducted a
thorough mental status exam which revealed no abnormalities with respect to
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Claimant’s attitude/behavior, speech, orientation, thought process, thought content,
perception, insight, judgment, suicidal/homicidal ideation, immediate memory, recent
memory, remote memory, concentration, or psychomotor behavior, though she did
describe Claimant’s mood as dysphoric and his affect as restricted. (Tr. at 451). Ms.
Durham did diagnose Claimant with depressive disorder not otherwise specified and
anxiety disorder not otherwise specified based upon Claimant’s self-reports of depressed
mood and frequent anxiety and worry. (Id.). Nevertheless, she found his social
functioning, persistence (ability to stay on task), and pace to be within normal limits.
(Tr. 451-52). Second, Dr. Saar likewise diagnosed Claimant with depressive disorder not
otherwise specified and anxiety disorder not otherwise specified, but found that
Claimant suffered from no functional limitations related to his mental impairments with
respect to Activities of Daily Living; Maintaining Social Functioning; Maintaining
Concentration, Persistence of Pace; or Episodes of Decompensation, Each of Extended
Duration.7 (Tr. at 458-60, 465). Significantly, in determining that Claimant “can manage
basic activities of daily living and social interactions,” Dr. Saar found Claimant to be
only “partially credible” during their consultation. (Tr. at 467). Third, Claimant’s
consultative examiner, Ms. Kelly, conducted a RFC assessment, in which she described
him as “markedly limited” in only his abilities to: work in coordination or proximity to
others without being unduly distracted by them, and accept instructions and respond
appropriately to criticism from supervisors. (Tr. at 479-80). With respect to all other
RFC listings, Ms. Kelly described Claimant as only either “slightly limited” or
“moderately limited.” (Id.). Ms. Kelly diagnosed Claimant with depressive disorder not
7 Although the ALJ declined to adopt Dr. Saar’s opinion that Claimant did not have any severe mental
impairments, (Tr. at 16), Dr. Saar’s assessment is consistent with a preponderance of the record relating
to Claimant’s RFC.
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otherwise specified and anxiety disorder not otherwise specified. (Tr. at 477). This is
consistent with the result of Claimant’s Beck Depression Inventory-II test, which
reflected severe levels of depression. (Tr. at 475). Notably, however, both the Minnesota
Multiphasic Personality Inventory-2 and the Million Clinical Multiaxial Inventory-III
were invalid “probably because of some symptom magnification on [Claimant’s] part.”
(Tr. at 476). Fourth, Consultative examiner Ms. Tate conducted a RFC assessment, in
which she assessed Claimant as having either “none” or “mild” limitations with respect
to all functional areas. (Tr. at 683-84). In her Mental Status Examination, Ms. Tate
noted mildly deficient recent memory and concentration, but otherwise noted no
abnormalities with respect to Claimant’s mood, affect, thought processes, thought
content, perception, judgment, insight, suicidal or homicidal ideation, immediate
memory, remote memory and psychomotor behavior. (Tr. at 689). Neither Claimant’s
Prestera treatment notes and internal assessments, nor the mental health evaluations
conducted by other practitioners are consistent with PA Rodes’ RFC opinions.
The ALJ conducted a careful examination of the relevant evidence and cited
substantial evidence in the record which contradicted the assertions made by PA Rodes
in her assessments. Certainly, the ALJ was obligated to consider PA Rodes’ findings and
opinions, which the ALJ obviously did as outlined in her written decision. Moreover, the
ALJ had a duty to explain the weight she gave to conflicting medical opinions, a duty
with which she also complied. Claimant would like the Court to remand or reverse this
case simply because he disagrees with the ALJ’s rationale for discounting PA Rodes’
opinions. However, the objective medical evidence and the opinions of the state
consultants and Claimant’s consultant provide substantial support for the ALJ’s
conclusion that Claimant’s functional limitations did not prevent him from performing
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light or sedentary work. If the ALJ erred in expressing a lay opinion about the
aggressiveness of Claimant’s treatment, such an error was harmless and does not merit
reversal or remand. See Burch v. Astrue, 2011 WL 4025450 (W.D.N.C., July 5, 2011),
citing Camp v. Massanari, 22 Fed.Appx. 311 (4th Cir.2001) (claimant must show that
absent error, the decision might have been different).
Accordingly, the Court finds that the ALJ complied with the requirements of the
applicable Social Security regulations by correctly assessing PA Rodes’ opinions in view
of its evidentiary significance and in relation to the objective medical findings and other
data contained in the record as a whole.
2.
Seeking Clarifying Information
Claimant alternatively contends that at best, the record is ambiguous as to
whether Ms. Rodes’ opinions were inconsistent with the overall record or based on
Claimant’s subjective complaints. (Pl.’s Br. at 21). Claimant argues that the ALJ was
therefore obligated to seek clarification as to any doubts she had about Ms. Rodes’
opinions pursuant to 20 C.F.R. § 404.1512(e). (Id.). In contrast, the Commissioner
argues that the ALJ had no duty to seek clarification of the opinions of the Prestera
therapists or physician’s assistant because they were not unclear or ambiguous, so much
as inconsistent and unsupported by the evidence of the record. (Def. Br. at 15). Rather,
the Commissioner argues that the ALJ properly weighed and discounted the opinions of
the counselors and physician’s assistant in accordance with the regulations. (Id.).
Pursuant to the applicable regulations effective at the time of Claimant’s hearing,
the SSA must re-contact a treating medical source for additional information when the
evidence from that treating source “is inadequate for us to determine whether you are
disabled.” 20 C.F.R. § 404.1512(e) (Aug. 1, 2006 – Nov. 11, 2010). Specifically,
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additional information must be sought “when the report from [a claimant’s] medical
source contains a conflict or ambiguity that must be resolved, the report does not
contain all the necessary information, or does not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1512(e)(1).
Social Security Ruling 96-5P further clarifies that “if the evidence does not support a
treating source’s opinion on any issue reserved to the Commissioner and the adjudicator
cannot ascertain the basis of the opinion from the case record, the adjudicator must
make ‘every reasonable effort’ to recontact the source of clarification of the reasons for
the opinion.” SSR 96-5P at *6. However, the ALJ has no duty to re-contact a medical
source whose “ultimate conclusion regarding disability was wholly inconsistent with
both the objective evidence contained in his treatment records and the records of the
other physicians who examined [the claimant].” Parnell v. Astrue, No. 5:07-cv-00390,
2008 WL 4414921, at *7 (S.D.W.V. Sept. 23, 2008) (unpublished) (quoting Jackson v.
Barnhart, 368 F.Supp.2d 504, 508-09 (D.S.C. 2005)). Rather, “SSR 96–5p requires recontact solely when both (a) the record fails to support a treating source's opinion, and
(b) the basis of the treating source's opinion is unascertainable from the record.”
Alejandro v. Barnhart, 291 F.Supp.2d 497, 512 (S.D.Tex. 2003).
In this case, both of Ms. Rodes’ opinions were thorough and complete. (Tr. at
419-26, 497-502). Neither opinion was ambiguous or inadequate in describing
Claimant’s diagnoses, treatment, or limitations. (Id.). The ALJ discounted Ms. Rodes’
opinions because neither the objective treatment notes, nor the evaluations conducted
by other mental health professionals corroborate the extreme limitations that Ms. Rodes
attributed to Claimant. The ALJ explicitly accounted for the discrepancy between Ms.
Rodes’s opinions and the other evaluations, stating that “Ms. Rodes’ opinions are based
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on the claimant’s subjective complaints,” rather than objective observations. (Tr. at 25).
Here, Ms. Rodes’ “opinion was found to be entitled to little weight because it relied on
claimant's subjective complaints of [symptoms] and was not supported by the objective
evidence of record, not because it was inadequate to make a disability determination.”
See Strickland v. Astrue, 2:10-cv-00765, 2011 WL 4021304, at *13 (S.D.W.V. May 31,
2011) (unpublished). Accordingly, the undersigned finds that the ALJ had no obligation
to re-contact Ms. Rodes because her opinions were not inadequate to make a disability
determination.
Consequently, having reviewed the ALJ’s decision and the evidentiary record, the
Court finds that the ALJ’s consideration of Ms. Rodes’ opinion was not in error. Further
the Court holds that the ALJ’s decision to afford Ms. Rodes’ RFC opinion limited
evidentiary weight was supported by substantial evidence.
B.
Combined Effect of All Impairments
Claimant argues that the ALJ failed to consider “how [his] impairments either
singly or in combination impacted [his] ability to function.” (Pl.’s Br. at 23). Rather,
Claimant contends that the ALJ “concocted” his RFC without specifying which
symptoms could reasonably be expected to arise from his impairments, or how those
symptoms could reasonably be expected to impair him. (Id.). Claimant appears to offer
his own analysis, in which he asserts: 1) that “his anxiety produced panic attacks” which
“had a significant impact on his employment capabilities.” (Pl.’s Br. at 24); 2) that
“[b]oth his physical and mental condition caused insomnia which was so severe he had
to rest for several hours during the day.” (Pl.’s Br. at 25); and 3) that several of his severe
impairments are known to cause fatigue, “one of his prominent symptoms,” which
caused him to “need to lie down during the day.” (Pl.’s Br. at 25-26). Because Claimant
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makes no effort to argue that his impairments are medically equivalent to a listed
impairment, the undersigned assumes that Claimant intends to argue that the overall
functional consequence of his combined impairments meets the statutory definition of
disability.
As the Fourth Circuit Court of Appeals stated in Walker v. Bowen, “[i]t is
axiomatic that disability may result from a number of impairments which, taken
separately, might not be disabling, but whose total effect, taken together, is to render
claimant unable to engage in substantial gainful activity.” 889 F.2d 47, 50 (4th Cir.
1989). The social security regulations provide that:
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard to
whether any such impairment, if considered separately, would be of
sufficient severity.
20 C.F.R. § 404.1523. Where there is a combination of impairments, the issue “is not
only the existence of the problems, but also the degree of their severity, and whether,
together, they impaired the claimant’s ability to engage in substantial gainful activity.”
Oppenheim, 495 F.2d at 398. The ailments should not be fractionalized and considered
in isolation, but considered in combination to determine the impact on the ability of the
claimant to engage in substantial gainful activity. Reichenbach v. Heckler, 808 F.2d
309, 312 (4th Cir. 1985). The cumulative or synergistic effect that the various
impairments have on claimant’s ability to work must be analyzed. DeLoatche v. Heckler,
715 F.2d 148, 150 (4th Cir. 1983).
In determining Claimant’s RFC, the ALJ found “that the claimant’s medically
determinable impairments could reasonably be expected to cause some of the alleged
symptoms,” but that Claimant’s “credibility in statements concerning the intensity,
- 31 -
persistence and limiting effects of these symptoms” was poor and that “the available
evidence of record does not support the degree of symptom severity and/or functional
limitation described by the claimant.” (Tr. at 20). An examination of the ALJ’s RFC
assessment confirms that he took into account the exertional and non-exertional
limitations that resulted from Claimant’s medically determinable impairments.
The ALJ restricted Claimant to light exertional work based upon his physical
conditions and further limited his climbing; stooping, kneeling, crouching, and
crawling; exposure to extreme temperatures, vibration, and hazards in working with
machinery in light of his postural and environmental limitations. (Tr. at 18). The ALJ
also restricted Claimant to frequent, but not constant, manipulation with the hand
based upon testimony at the hearing. (Id.). Further, the ALJ restricted Claimant to one
to two-step simple type work and tasks due to mild deficits in mental functioning, and
limited Claimant to brief and superficial contact with the public based upon his
testimony. (Id.). The ALJ provided a thorough review of the objective medical evidence,
the subjective statements of Claimant, and the opinion evidence. (Tr. at 18-25).
Moreover, at the administrative hearing, the ALJ presented the vocational expert with a
hypothetical question that required the expert to take into account Claimant’s
impairments in combination. (Tr. at 78-80). Despite being asked to assume all of these
restrictions, the vocational expert opined that Claimant could perform such light and
sedentary work as a night guard, product inspector, mail sorter, package machine
tender, product inspector, and surveillance monitor, in addition to certain other jobs
that also existed in significant numbers in the economy. (Tr. at 81). The ALJ’s
conclusion that Claimant’s combination of impairments was not so severe as to preclude
him from engaging in substantial gainful activity is amply supported by the medical
- 32 -
record.
Furthermore, although Claimant frames his argument in terms of the “combined
effect” of his impairments, the crux of his objection appears to be that the ALJ did not
credit all of the mental impairment limitations that Claimant alleges: namely, the effect
of panic attacks and the need to rest for several hours per day. (Pl.’s Br. at 24-25).
Although Claimant alleges suffering from panic attacks “as many as three times per
month,” he failed to mention panic attacks at any time during his hearing before the
ALJ. (Tr. at 88). Prestera treatment notes containing reference to panic attacks occur
only within a span of about 4 months in 2008. (Tr. at 527, 541, and 544). Moreover,
although Ms. Tate diagnosed Claimant with anxiety disorder not otherwise specified
“with features of panic,” she nonetheless reported “none” or “mild” limitations of
Claimant in all functional areas. (Tr. at 684-90). The ALJ did not err in failing to use
Claimant’s alleged panic attacks as a basis for further limiting his RFC.
As for Claimant’s argument that he required periodic rests during the day due to
fatigue and insomnia, the ALJ found “no basis for a limitation for the claimant to lie
down periodically throughout the day.” (Tr. at 23). While Claimant’s Prestera treatment
notes contain fairly regular reports of insomnia and fatigue, (Tr. at 402, 419, 491, 496,
497, 520, 521, 541, 544, 644), the remainder of the record, including multiple RFC
opinions and Claimant’s own reports of daily activities, is inconsistent with fatigue of
such severity as to require him to lie down for an average of four hours per day. (Tr. at
62). Furthermore, the ALJ specifically found claimant’s “credibility in statements
concerning the intensity, persistence and limiting effects of these symptoms to be poor,”
as his description of symptoms and limitations was “inconsistent and unpersuasive,”
while his hearing testimony “appeared to be purposely vague.” (Tr. at 20, 23). “[I]n
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reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence,
make credibility determinations, or substitute our judgment for that of the ALJ.”
Johnson v. Barnhart, 434 F.2d 650, 653 (4th Cir. 2005) (quoting Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996)) (internal marks omitted). The undersigned also notes that
credibility has been an issue for Claimant with several evaluators. (Tr. at 357, 435, 467
and 476). Substantial evidence on the record supports the ALJ’s finding that Claimant
was limited to “one to two step simple type work and tasks” and “brief and superficial
contact with the public.” (Tr. at 25). Accordingly, the undersigned is satisfied that the
ALJ adequately considered and accounted for the overall functional impact of
Claimant’s combined impairments.
C.
Credibility of Witness Testimony
Claimant argues that the ALJ failed to properly consider the statements and
testimony of Claimant’s wife and friend. (Pl.’s Br. at 31). Claimant disagrees with the
ALJ’s conclusion that his witnesses’ testimony was inconsistent with the opinions and
observations by medical doctors in the case. (Tr. at 33). Claimant also argues that the
ALJ erred by discrediting his witnesses’ testimony on the improper bases that 1) they
were not trained medical professionals, and 2) they were friends and family member of
the claimant. (Tr. at 32). Finally, Claimant questions why the ALJ accorded Claimant a
limitation for manipulation of the hands, but not dizziness and stumbling. (Tr. at 33).
According to Claimant, if the testimony of his wife and friend had been credited, “there
can be no doubt that a favorable decision would have been required.” (Tr. at 32).
Under 20 C.F.R. §§ 404.1513(d)(4) and 416.913(d)(4), the ALJ considers evidence
provided by “other non-medical sources,” including spouses and friends of the Claimant.
20 C.F.R. §§ 404.1513(d)(4) and 416.913(d)(4); Morgan v. Barnhart, 142 Fed. Appx.
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716, 720 (4th Cir. 2005). Social Security Ruling 06-03p provides guidance on how to
treat “other non-medical sources.” SSR 06-03p, at *5. “In considering evidence from
‘non-medical sources’ who have not seen the individual in a professional capacity in
connection with their impairments, such as spouses, parents, friends, and neighbors, it
would be appropriate to consider such factors as the nature and extent of the
relationship, whether the evidence is consistent with other evidence, and any other
factors that tend to support or refute the evidence.” SSR 06-03p, at *6. The Ruling
emphasizes that “there is a distinction between what an adjudicator must consider and
what the adjudicator must explain.” Id. at *6. Generally, the ALJ must “explain the
weight given to these ‘other sources,’ or otherwise ensure that the discussion of the
evidence in the determination or decision allows a claimant or subsequent reviewer to
follow the adjudicator’s reasoning.” Id. at *6.
When considering whether an ALJ’s credibility determination is supported by
substantial evidence, the Court is not charged with simply replacing its own credibility
assessment for that of the ALJ; rather, the Court must review the record as a whole and
determine if it is sufficient to support the ALJ’s conclusion. “In reviewing the record for
substantial evidence, the Court does not re-weigh conflicting evidence . . . or substitute
its own judgment for that of the Commissioner.” Hays, 907 F.2d. at 1456. Because the
ALJ had the “opportunity to observe the demeanor and to determine the credibility of
the claimant, the ALJ’s observations concerning these questions are to be given great
weight.” Shively v. Heckler, 739 F.2d 987, 989–90 (4th Cir. 1984) (citing Tyler v.
Weinberger, 409 F. Supp. 776 (E.D.Va.1976)). Here, sufficient evidence supports the
ALJ’s credibility determination.
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Mrs. Beck and Mr. Burk testified to Claimant’s severe debilitation.8 (Tr. at 65-76).
As the ALJ observed, this extreme level of limitation is simply not consistent with the
preponderance of medical opinions on record. (Tr. at 25). Claimant argues cursorily that
his witnesses’ testimony and statements “were consistent with the opinions of all his
treating mental health providers and the opinion of Psychologist Sheila Kelly,” but he
fails to account for the opinions of Dr. Saar, Ms. Durham, and Ms. Tate. (Tr. at 455-68,
449-52, and 683-90). Given what little weight the ALJ accorded to the Prestera
assessments of Ms. Rodes, Ms. Wilson and Ms. Smith, testimonial consistency with the
Prestera opinions hardly bolsters Claimant’s case. Regarding Ms. Kelly’s opinion, the
ALJ noted that her evaluation was apparently prepared solely for litigation purposes.
(Tr. at 470). Furthermore, it is not clear that Ms. Kelly’s opinion, which noted “marked
limitation” in only two functional areas, is particularly consistent with the witnesses’
testimony of more extreme debilitation. Although Ms. Kelley’s opinion does include
reports by Claimant which are similar to the testimony of his witnesses, two of the tests
that Ms. Kelly conducted were invalid “probably because of some symptom
magnification on [Claimant’s] part.” (Tr. at 476). As for the witnesses’ testimony of
Claimant’s dizziness and stumbling, the undersigned notes that complaints of such
symptoms do not appear in any of the physical or mental health evaluations on record.
As Claimant acknowledges in his brief, Mrs. Beck testified that Claimant had difficulty “getting out in
public and dealing with people,” was “quick to anger,” had “periodic emotional outbursts,” had difficulty
taking directions from others, was easily irritated by his children, slept poorly and required naps during
the day, and couldn’t drive due to dizzy spells. (Pl.’s Br. at 30, Tr. at 65-69). Mrs. Beck also testified that
Claimant was “fairly moody and emotional,” isolated himself in his room “two or three days a week,” had
short term memory problems, and required his wife to monitor his medicine. (Tr. at 65-69). Regarding
Claimant’s physical health, Mrs. Beck testified that Claimant suffered from back pain, shoulder pain,
difficulty holding objects without dropping them, and was unable to control his blood sugar levels such
that he frequently passes out. (Tr. at 65-69). Mr. Burk testified that Claimant required frequent sitting
breaks because he became winded easily, suffered from short term memory problems, had difficulty
holding coherent conversations, was clumsy and tripped over things, could no longer engage in welding
and sanding, forgot his train of thought “constantly,” and suffered from frequent dizzy spells. (Tr. at 7076).
8
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(Tr. at 343-48, 350-57, 428-35, 449-53, 455-68, 470-81, 683-91). The ALJ did not err in
discounting the “other non-medical source” testimony of Claimant’ witnesses as against
the weight of the objective medical evidence on record. 20 C.F.R. §§ 404.1513(d)(4) and
416.913(d)(4); SSR 06-03p. To the extent that the ALJ may have improperly discredited
the witnesses’ testimony on the basis of familial and relational bias, that error was
harmless as their testimony was inconsistent with the preponderance of the record. See
Morgan, 142 Fed. Appx. at 724 (supporting Claimant’s argument “in principle,” but
declining to address the issue).
Having reviewed the Transcript of Proceedings, including the ALJ’s written
decision, the Court finds that the ALJ's credibility assessment of Claimant was
consistent with the applicable regulations, case law, and Social Security rulings and is
supported by substantial evidence. 20 C.F.R. §§ 404.1513(d)(4) and 416.913(d)(4); SSR
06-03p; Morgan, 142 Fed. Appx. at 724.
D.
Incomplete Hypothetical
Claimant argues that the ALJ’s hypothetical question to the vocational expert was
incomplete because it did not adequately account for Claimant’s moderate limitation on
“concentration, persistence, or pace,” despite the ALJ’s finding that such a limitation
existed. (Pl.’s Br. at 34). According to Claimant, the ALJ erred by simply limiting
Claimant to “one and two step simple type work and tasks” and “brief and superficial
contact with the public,” rather than employing a function-by-function inquiry of
Claimant’s mental capacity to work. (Pl.’s Br. at 34, Tr. at 80). The Commissioner
disagrees with Claimant, arguing that the ALJ specifically addressed Claimant’s
complaint in her decision. (Def. Br. at 14). In her decision, the ALJ explained in a
footnote that “the Claimant has only mild deficits in mental functioning, and the
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limitations in the mental residual functional capacity would seem to be more favorable
to the claimant’s case.” (Tr. at 18 n.1).
It is well-established that for a vocational expert's opinion to be relevant, it must
be in response to a proper hypothetical question that sets forth all of the claimant's
impairments. Walker v. Bowen, 889 F.2d 47, 50–51 (4th Cir. 1989). While questions
posed to the vocational expert must fairly set out all of the claimant's impairments, the
question need only reflect those impairments supported by the record. See Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3rd Cir. 1987). Circuit courts are split on the specificity
with which an ALJ must tailor hypothetical questions to account for limitations on
persistence, pace, or concentration. Compare Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176 (11th Cir. 2011); O’Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010);
Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004) with Smith v. Halter, 307 F.3d 377
(6th Cir. 2001); Howard v. Massanari, 255 F.3d 577 (8th Cir. 2001); see also StubbsDanielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). In a Fourth Circuit case in which the
Claimant argued that the ALJ’s hypothetical did not account for certain severe
limitations, the Circuit Court distinguished Winschel and Ramirez on the ground that a
valid explanation for the ALJ’s hypothetical was supported by the record; the Claimant’s
severe impairment had been successfully treated and therefore her RFC was not
restricted. Thompson v. Astrue, 442 Fed.Appx. 804, 806 n.2 (4th Cir. 2011).
Accordingly, the District of South Carolina has held that:
an ALJ's finding that a claimant is “moderately limited” with respect to
concentration, persistence, or pace does not, in itself, establish any limit
on the claimant's residual functional capacity. Rather, the proper focus is
on the underlying medical evidence and whether the residual functional
capacity determined by the ALJ and presented in a hypothetical question
to the VE adequately reflects this medical evidence.
West v. Astrue, 2012 WL 988113, No. 4:10-CV-2712-MBS at *11 (D.S.C. Mar. 21, 2012).
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In the present case, although the ALJ gave Claimant “maximum benefit” of the
doubt in finding moderate difficulties in “concentration, persistence or pace,” she only
limited Claimant to “one and two step simple type work and tasks” based upon the
underlying medical evidence. (Tr. 17, 18). In her evaluation, Ms. Durham found
Claimant’s persistence, concentration, and pace to be within normal limits based upon
clinical observation. (Tr. at 451-52). Ms. Durham also found Claimant’s recent memory
and remote memory to be within normal limits. (Tr. at 451). Ms. Kelly found “no
significant problems in attention and concentration.” (Tr. at 476). Ms. Tate found
Claimant’s persistence and pace to be within normal limits based upon clinical
observation, but his concentration to be “mildly deficient.” (Tr. at 690). She found
Claimant’s immediate memory to be within normal limits, but his recent memory to be
mildly “deficient.” (Tr. at 689). In light of the medical evaluations on record relating to
Claimant’s concentration, persistence, and pace, the ALJ’s limitation of “one to two step
simple type work and tasks” seems quite generous, and certainly supported by
substantial evidence. The RFC finding and, hence, the hypothetical question
demonstrate that the ALJ fairly accommodated Claimant’s moderate difficulties in
concentration, persistence, or pace to the extent that they were supported by the record.
In light of the medical evidence before the Court and the ALJ’s substantiated RFC
finding, the undersigned concludes that the ALJ posed a proper hypothetical to the
vocational expert.
VIII. Conclusion
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision IS supported by substantial evidence. Therefore, by Judgment
Order entered this day, the final decision of the Commissioner is AFFIRMED and this
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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.
ENTERED: September 7, 2012.
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