Jividen v. Astrue
Filing
19
MEMORANDUM OPINION AND ORDER For the reasons outlined within this Order, the Court Denies 18 Plaintiff's objections and Accepts and Incorporates the : 17 Proposed Findings and Recommendations by Magistrate Judge; the Court Grants the 15 C ommissioner's motion for judgment on the pleadings and Denies the like 12 motion of Plaintiff; dismisses with prejudice the 2 Plaintiff's complaint. Signed by Judge Robert C. Chambers on 3/31/2014. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JOEL E. JIVIDEN,
Plaintiff,
v.
CIVIL ACTION NO. 3:12-04698
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
Based upon its review of Plaintiff’s objections and the record in this case, including the
decision of the administrative law judge (“ALJ”), the Court FINDS that the ALJ’s decision was
made in accordance with applicable law and is supported by substantial evidence. Therefore, the
Court DENIES Plaintiff’s objections (ECF No. 18) and ACCEPTS and INCORPORATES the
Proposed Findings and Recommendations (“PF&R”) of the Magistrate Judge (ECF No. 17). The
Court accordingly GRANTS the Commissioner’s motion for judgment on the pleadings (ECF
No. 15), DENIES the like motion of Plaintiff (ECF No. 12), and DISMISSES with prejudice
Plaintiff’s Complaint (ECF No. 2).
I.
Procedural history
On November 20, 2009, Plaintiff Joel E. Jividen filed an application for a period of
disability and disability insurance benefits (“DIB”), in which he alleged a disability onset date of
November 10, 2005. R. at 119-20. His application was denied by the Social Security
Administration on January 25, 2010. Id. at 54-58. Plaintiff completed a request for
1
reconsideration on February 10, 2010. Id. at 61. On reconsideration, his application was again
denied. Id. at 62-64. He subsequently requested a hearing before an ALJ concerning his
application. Id. at 65-66. The requested hearing was held before the Honorable James J. Kent,
ALJ, on December 15, 2010. Id. at 25-51. On December 29, 2010, the ALJ issued a written
decision finding that Plaintiff was not disabled under the terms of the Social Security Act. Id. at
13-20. Plaintiff requested review of this decision by the Appeals Council, but his request was
denied on June 28, 2012. Id. at 1-3.
Plaintiff then commenced the instant civil action, pursuant to 42 U.S.C. § 405(g),
asserting that he had exhausted his administrative remedies and requesting review of his
application’s denial. Compl., ECF No. 2. Both sides moved for judgment on the pleadings. Pl.’s
Br. Supp. J. Pleadings, ECF No. 12; Def.’s Br. Supp. Def.’s Decision, ECF No. 15. This action
was referred to the Honorable Cheryl A. Eifert, United States Magistrate Judge, for submission
to this Court of proposed findings of fact and recommendations for disposition, pursuant to 28
U.S.C. § 636(b)(1)(B). The Magistrate Judge issued her PF&R on July 15, 2013, recommending
that Plaintiff’s motion for judgment on the pleadings be denied, that the Commissioner’s motion
for judgment on the pleadings be granted, and that this case be dismissed. PF&R, ECF No. 17.
Plaintiff filed timely objections to the PF&R. Objections, ECF No. 18.
Section II discusses the applicable standard of review. Sections III through VI discuss
each of Plaintiff’s four objections to the PF&R.
II.
Standard of review
This Court must “make a de novo determination of those portions of the . . . [Magistrate
Judge’s] proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). In contrast, the scope of this Court’s review of the Commissioner’s decision is
2
narrow. This Court “must uphold the factual findings of the [Commissioner] if they are
supported by substantial evidence and were reached through application of the correct legal
standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing 42 U.S.C. § 405(g), which
states, in part, “The findings of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . . .”) (other citations omitted), superseded on other
grounds, 20 C.F.R. § 416.927(d)(2); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (also
citing 42 U.S.C. § 405(g), among other authorities). “Substantial evidence” is defined as:
“Evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but
may be somewhat less than a preponderance. If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there is ‘substantial
evidence.’”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966)); see also Craig, 76 F.3d at 589.
The ALJ, not the court, makes findings of fact and credibility determinations and resolves
evidentiary conflicts. Hays, 907 F.2d at 1456. “‘Where conflicting evidence allows reasonable
minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on
the [Commissioner] (or the [Commissioner]’s designate, the ALJ).’” Craig, 76 F.3d at 589
(quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). “The issue before [this Court],
therefore, is not whether [Plaintiff] is disabled, but whether the [ALJ]’s finding that [he] is not
disabled is supported by substantial evidence and was reached based upon a correct application
of the relevant law.” Id. (citing Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)). This
Court is required to “uphold the [Commissioner]’s decision even should the court disagree with
such decision as long as it is supported by ‘substantial evidence.’” Blalock, 483 F.2d at 775
(citations omitted).
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III.
Objection 1: The ALJ failed to comply with Social Security Ruling 96-8p in
assessing Plaintiff’s residual functional capacity1
Plaintiff argues in his Objections that the ALJ failed to comply with Social Security
Ruling (“SSR”) 96-8p when determining his residual functional capacity (“RFC”). The Ruling
provides:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (footnote omitted). Additionally,
In all cases in which symptoms, such as pain, are alleged, the RFC assessment
must: [c]ontain a thorough discussion and analysis of the objective medical and
other evidence, including the individual’s complaints of pain and other symptoms
and the adjudicator’s personal observations, if appropriate; [i]nclude a resolution
of any inconsistencies in the evidence as a whole; and [s]et forth a logical
explanation of the effects of the symptoms, including pain, on the individual’s
ability to work.
The RFC assessment must include a discussion of why reported symptom-related
functional limitations and restrictions can or cannot reasonably be accepted as
consistent with the medical and other evidence.
Id.
The Court finds that the ALJ’s decision complies with SSR 96-8p. As required by the
Ruling, the ALJ discussed specific medical facts (such as information from Plaintiffs’ MRIs and
x-rays) and nonmedical evidence (such as Plaintiff’s own description of his pain). R. at 15-19.
1
Plaintiff outlines four objections. These four “objections,” however, are in fact comprised of
several more additional objections. For organizational purposes, the Court will use the same
objection headings used by Plaintiff and will address each of Plaintiff’s arguments according to
the “objection” with which it corresponds.
4
The ALJ described the amount of work that Plaintiff could perform—albeit briefly—and adopted
the state agency opinions as to Plaintiff’s exertional and nonexertional limits. Id. at 19-20. The
ALJ also explained how he resolved inconsistencies between Plaintiff’s statements and Dr.
Arvind Viridia’s medical source statement, on the one hand, and the state agency opinions by Dr.
Rogelio Lim and Dr. A. Rafael Gomez, on the other. The ALJ explained that he did not find
Plaintiff’s testimony credible because, based on the ALJ’s assessment of the evidence, Plaintiff’s
testimony was not supported by “objective medical evidence.” Id. at 18. Plaintiff had reported
that he suffers from constant pain, weekly headaches lasting from one half hour to four hours,
arthritis in his hands, shoulders, and back, and fibromyalgia. Id. He reported that he could only
stand for fifteen minutes at a time and sit for thirty minutes at a time. Id. The ALJ noted,
however, that MRIs reveal only minimal bulging. Id. Additionally, x-rays have revealed only
minor problems, with the most recent x-ray, in 2006, showing negative cervical spine and no
acute processes. Id.
In his medical source statement, Dr. Viridia concluded that Plaintiff would need to rest
approximately six hours in an eight-hour workday and suggested other highly restrictive
limitations. R. at 437-43. Although Dr. Viridia had seen Plaintiff monthly since February 2001,
the ALJ gave no weight to Dr. Viridia’s medical source statement because “imaging techniques
do not reveal noteworthy problems.” Id. at 19. In contrast, the ALJ found that information about
Plaintiff’s impairments supported the opinions of the state agency consultants. Id. The Court
finds that the ALJ sufficiently explained why he found that Dr. Viridia’s functional
recommendations were inconsistent with the other evidence presented, and that the ALJ’s
findings in this area were supported by substantial evidence.
5
SSR 96-8p explains that medical opinions from a treating source must be given
controlling weight in some circumstances: “If a treating source’s medical opinion on an issue of
the nature and severity of an individual’s impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record, the adjudicator must give it controlling weight.” SSR 968p, at *7. Here, substantial evidence supports the ALJ’s finding that Dr. Viridia’s medical source
statement was not well-supported by medically-acceptable techniques. As explained above, the
opinion was inconsistent with Dr. Lim’s state agency consultant opinion and medical testing
evidence. Under those circumstances, the ALJ was not required to give Dr. Viridia’s opinion
controlling weight.
Plaintiff also points to SSR 96-5p, which states that “adjudicators must evaluate opinion
evidence from [state agency] medical or psychological consultants using all of the applicable
rules in 20 CFR [§§] 404.1527 and 416.927 to determine the weight to be given to the opinion.”
SSR 96-5p, 1996 WL 374183, at *6 (July 2, 1996). Federal regulations detail the factors to be
considered when evaluating a state agency consultant’s medical opinion:
When an administrative law judge considers findings of a State agency medical or
psychological consultant or other program physician, psychologist, or other
medical specialist, the administrative law judge will evaluate the findings using
the relevant factors in paragraphs (a) through (d) of this section, such as the
consultant’s medical specialty and expertise in our rules, the supporting evidence
in the case record, supporting explanations the medical or psychological
consultant provides, and any other factors relevant to the weighing of the
opinions. Unless a treating source’s opinion is given controlling weight, the
administrative law judge must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant or other program
physician, psychologist, or other medical specialist, as the administrative law
judge must do for any opinions from treating sources, nontreating sources, and
other nonexamining sources who do not work for us.
20 C.F.R. § 404.1527(e)(2)(ii) (discussing entitlement to disability income); see also §
404.1527(c) (describing in more detail the factors to be considered when weighing medical
6
opinions); § 416.927 (listing the same factors as § 404.1527 in the context of determining
entitlement to supplemental security income).
Plaintiff also points to SSR 96-6p, which states,
The regulations provide progressively more rigorous tests for weighing opinions
as the ties between the source of the opinion and the individual become weaker.
For example, the opinions of physicians or psychologists who do not have a
treatment relationship with the individual are weighed by stricter standards, based
to a greater degree on medical evidence, qualifications, and explanations for the
opinions, than are required of treating sources.
SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996). That Ruling also provides, “In appropriate
circumstances, opinions from State agency medical and psychological consultants and other
program physicians and psychologists may be entitled to greater weight than the opinions of
treating or examining sources.” Id. at *3.
The ALJ’s decision states that he “considered opinion evidence in accordance with the
requirements of 20 CFR [§] 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” R. at 17. The
decision later states,
I have . . . considered the state agency opinions . . . , which limit the claimant to
the medium exertional level and with nonexertional limits and I find the
combination of the claimant’s severe impairments, and [sic] considering his less
than favorable credibility, supports the limitation to the medium exertional level
with the non-exertional limitations set forth above.
Id. at 19. Although the ALJ’s discussion of the state agency opinions is brief and makes no
explicit mention of certain applicable factors, the Court finds that the ALJ’s discussion and
consideration of relevant factors is sufficient to satisfy applicable law.
Plaintiff additionally argues that the RFC finding is “inadequate” because “while the ALJ
found Plaintiff suffered from severe impairments of ‘joint pain and weakness in the hands . . . ,’
there are absolutely no manipulative limitations provided in the RFC and no explanation for how
the limitations resulting from this severe impairment were considered to affect Plaintiff’s RFC.”
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Objections at 4. It is true that the ALJ found that Plaintiff’s joint pain and weakness in the hands
were severe impairments, R. at 16, and that subsequent portions of the ALJ’s decision do not
discuss joint pain and hand weakness specifically, including the function-by-function
assessment. However, the ALJ did note that, generally, the objective medical evidence did not
support the extent of Plaintiff’s complaints concerning pain. Id. at 18-19. This appears to explain
why no limitation related to hands and joints was placed in the RFC. Additionally, the decision
that manipulative limits were not necessary is consistent with Dr. Lim’s state agency consultant
opinion, R. at 355-62, which the ALJ credited. R. at 19.
Plaintiff additionally challenges the finding that Plaintiff’s depressive disorder was not
severe. Federal regulations describe the method of analysis in determining whether a mental
disorder is severe:
We measure severity according to the functional limitations imposed by your
medically determinable mental impairment(s). We assess functional limitations
using the four criteria in paragraph B of the listings: Activities of daily living;
social functioning; concentration, persistence, or pace; and episodes of
decompensation. Where we use “marked” as a standard for measuring the degree
of limitation, it means more than moderate but less than extreme. A marked
limitation may arise when several activities or functions are impaired, or even
when only one is impaired, as long as the degree of limitation is such as to
interfere seriously with your ability to function independently, appropriately,
effectively, and on a sustained basis.
20 C.F.R. § 404, subpt. P, app. 1, 12.00(C). The ALJ found that Plaintiff had only “mild
limitations” for the first three functional areas. R. at 16. As to the fourth functional area, Plaintiff
had no extended episodes of decompensation. Id. Furthermore, the ALJ specifically noted that
“[a] review of the record reveals no significant functional limitations from this impairment.” Id.
Dr. Viridia’s treatment records sometimes note that Plaintiff has anxiety and/or depression. Id. at
304-43. However, Dr. Viridia never referred Plaintiff for a psychiatric evaluation or gave
Plaintiff any medical treatment for this condition other than prescriptions for Cymbalta and
8
Lexapro. Lastly, Dr. Viridia’s medical source statement notes that while Plaintiff is severely
limited in his ability to deal with work stress, emotional factors do not contribute to the severity
of Plaintiff’s symptoms and functional limitations. Id. at 438. The Court therefore finds that the
ALJ’s finding that Plaintiff’s depression is non-severe is supported by substantial evidence.
Plaintiff further argues that, even if his depression is non-severe, the ALJ was
nonetheless required to consider how his depression may act in combination with Plaintiff’s
other impairments to limit his work-related activities. In support of this argument, he again
points to SSR 96-8p, which states,
In assessing RFC, the adjudicator must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that are not “severe.”
While a “not severe” impairment(s) standing alone may not significantly limit an
individual’s ability to do basic work activities, it may--when considered with
limitations or restrictions due to other impairments--be critical to the outcome of a
claim. For example, in combination with limitations imposed by an individual’s
other impairments, the limitations due to such a “not severe” impairment may
prevent an individual from performing past relevant work or may narrow the
range of other work that the individual may still be able to do.
SSR 96-8p, at *5. Although the ALJ’s RFC assessment does not mention depression specifically,
it does note that the ALJ made the assessment having “considered all symptoms” and that he
“evaluate[d] the intensity, persistence, and limiting effects of the claimant’s symptoms.” R. at 17.
The Court thus finds that the ALJ’s decision constitutes sufficient consideration of whether
Plaintiff’s “non-severe” depression, together with this other impairments, impacted the work he
was able to do. Furthermore, the Court finds that the ALJ’s finding is supported by substantial
evidence, as revealed by reviewing the evidence of depression in the record.
Plaintiff further argues that “the ALJ performed no function-by-function assessment
whatsoever, making it impossible for any subsequent reviewer to determine whether the ALJ’s
RFC accounted for all of the limitations in the Plaintiff’s functioning due to his severe
impairments.” Objections at 5. However, as noted above, the ALJ’s decision includes detailed
9
discussion of the medical evidence and states Plaintiff’s functional limitations. Moreover, the
ALJ explained why he did not believe that the functional limitations recommended by Dr.
Viridia were necessary, based on the objective medical evidence in the record. This constitutes a
sufficient function-by-function assessment. Cf. Vandervort v. Astrue, No. CIV.A. TMD1002671, 2013 WL 508987, at *2 (D. Md. Feb. 11, 2013) (“While the precise medical evidence
relied on for every specific limitation need not be discussed directly in the actual RFC finding,
the Court must not be required to speculate as to the bases for the findings.”).
Lastly, Plaintiff argues that the Magistrate’s PF&R is merely a post hoc rationalization of
the ALJ’s decision, citing to two Supreme Court cases: National Labor Relations Board v.
Kentucky River Community Care, Inc., 532 U.S. 706, 715 n.1 (2001), and Securities and
Exchange Commission v. Chenery Corporation, 318 U.S. 80, 87-88 (1943). However, neither
case excerpt directly support this point, and the Court does not find the Magistrate’s PF&R to be
merely a post hoc rationalization of the ALJ’s decision. In summary, Plaintiff’s first objection is
denied.
IV.
Objection 2: The ALJ committed reversible error in according inadequate weight to
the opinion of Plaintiff’s treating physician
Plaintiff’s second objection is that the ALJ committed reversible error in according
inadequate weight to the opinion of Plaintiff’s treating physician. In support of this objection,
Plaintiff argues that the ALJ did not consider the factors found in 20 C.F.R. § 404.1527 and §
416.927 when discussing Dr. Viridia’s medical source statement. Section 404.1527(c) provides
that, when deciding the weight to be given to a medical opinion, the ALJ must consider the
following factors: 1) examining relationship; 2) treatment relationship, including length of the
treatment relationship, frequency of examination, and nature and extent of the treatment
relationship; 3) supportability (such as evidence and explanations presented); 4) consistency with
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the record as a whole; 5) the medical professional’s specialization; and 6) other factors as
necessary. See also § 416.927(c) (noting the same factors).
The ALJ’s decision acknowledges the existence of treatment notes from Dr. Viridia
starting in April 2002. R. at 15. At the hearing, Plaintiff’s counsel stated on the record that Dr.
Viridia had been treating Plaintiff monthly since February 2001, constituting over 100 visits. Id.
at 29. It is clear that the ALJ considered Dr. Viridia’s examining and treatment relationship with
Plaintiff, as well as Dr. Viridia’s specialization. Furthermore, the ALJ noted that although Dr.
Viridia recommended significant limitations for Plaintiff—including the need for Plaintiff to rest
for six hours in an eight-hour workday—“imaging techniques do not reveal noteworthy
problems,” citing Plaintiff’s most recent MRI and x-ray. Id. at 19. This shows that the ALJ
assessed the supportability of Dr. Viridia’s opinion and its consistency with the record as a
whole, ultimately finding that the opinion should be given no weight. Therefore, the ALJ
considered all necessary factors, and again, all of the ALJ’s findings regarding these factors are
supported by substantial evidence.
Plaintiff points to SSR 96-2p for the proposition that the treating doctor’s opinion should
be granted deference.2 See SSR 96-2p, 1996 WL 374188 (July 2, 1996). The Ruling provides
that, even when a medical source opinion is not given controlling weight, it is “still entitled to
deference and must be weighed using all of the factors provided in 20 CFR [§§] 404.1527 and
416.927.” Id. at *4. This Ruling indicates, however, that even a medical source opinion must still
pass the rigor of the factors noted above, factors which the ALJ considered in this case. Rules
passed by the Social Security Administration concerning the treatment of medical evidence state,
2
That Ruling also discusses the circumstances under which the medical opinion of a treating
source must be given controlling weight. Plaintiff does not argue in his objections that Dr.
Viridia’s opinion is entitled to controlling weight, and even if he did so argue, the Court would
not find that the opinion is entitled to controlling weight.
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All things being equal, when a treating source has seen a claimant long enough to
have obtained a detailed longitudinal picture of the claimant’s impairment(s), we
will always give greater weight to the treating source’s opinion than to the
opinions of nontreating sources even if the other opinions are also reasonable or
even if the treating source’s opinion is inconsistent with other substantial
evidence of record. The rule also provides that, even if the treating source’s
opinion is not such that we can give it controlling weight, we will still give the
opinion more weight than we would have given it if it came from a nontreating
source.
Standards for Consultative Examinations & Existing Medical Evidence, 56 Fed. Reg. 36932-01,
at *36936 (Aug. 1, 1991) (emphasis added). However, substantial evidence supports the ALJ’s
finding here that not all things were equal—namely, no medical evidence supported the drastic
limitations recommended by Dr. Viridia. Therefore, the ALJ’s decision not to give greater
weight to Dr. Viridia’s opinion does not violate applicable law.
SSR 96-2p further provides that if the application is denied, “the notice of the
determination or decision must contain specific reasons for the weight given to the treating
source’s medical opinion, supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” SSR 96-2p, at *5. Indeed,
“[p]aragraph (d)(2) of 20 CFR [§§] 404.1527 and 416.927 requires that the adjudicator will
always give good reasons in the notice of the determination or decision for the weight given to a
treating source’s medical opinion(s).” Id. Here, the ALJ gave specific, detailed reasons,
supported by the available medical records, for his decision not to give any weight to Dr.
Viridia’s medical source opinion. Contrary to Plaintiff’s arguments, sufficient “good reasons”
were presented in the decision to support the ALJ’s finding in this regard. In summary,
Plaintiff’s second objection is denied.
V.
Objection 3: The ALJ did not provide a specific finding or analysis regarding the
physical and mental demands of Plaintiff’s past relevant work as required by Social
Security Ruling 82-62
12
Plaintiff argues that the ALJ’s decision violates SSR 82-62, which discusses a claimant’s
ability to do past relevant work. SSR 82-62, 1975-1982 Soc. Sec. Rep. Serv. 809 (Jan. 1, 1982).
According to Plaintiff, this Ruling mandates that “the ALJ’s decision include detailed
information about strength, endurance, manipulative ability, mental demands and other job
requirements of past relevant work.” Objections at 7. That is not what the Ruling demands,
however. The Ruling instead states, “Detailed information about strength, endurance,
manipulative ability, mental demands and other job requirements must be obtained as
appropriate” when making the RFC determination. SSR 82-62, at *3 (emphasis added).
Therefore, the ALJ is not required to specifically address each of these job-related abilities in the
decision, so long as there is appropriate evidence in the record about such abilities. Here, the
ALJ possessed sufficient detailed information about all of these facets of Plaintiff’s past work
when making his decision. Significant testimony about Plaintiff’s past job duties and demands
was developed during the hearing. R. at 31-34, 46-51.
In order to find that the claimant can perform past relevant work, the ALJ must make
findings of fact about the applicant’s RFC, about the physical and mental demands of the
applicant’s past job, and about whether the claimant’s RFC allows him to return to that job. SSR
82-62, at *4. Plaintiff argues that the ALJ did not properly assess his RFC, especially in light of
the many severe impairments Plaintiff has—including joint pain and hand weakness—and the
vocational expert’s testimony about the demands of Plaintiff’s past job, which include reaching,
handling, and fingering. The Court, however, disagrees. The ALJ properly assessed Plaintiff’s
RFC, especially taking into account Plaintiff’s past work as the owner and operation of company
that does natural gas work, as discussed by the Magistrate Judge, and other substantial evidence.
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VI.
Objection 4: The ALJ committed reversible error in failing to order a psychological
consultative examination
Plaintiff argues that the ALJ should have ordered a psychological consultative
examination based on the evidence in the record regarding Plaintiff’s mental health and because
of “the ALJ’s duty to investigate the facts and develop the arguments both for and against
granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (citing Richardson v. Perales, 402
U.S. 389, 400–01 (1971)) (also noting that Social Security proceedings are inquisitorial, not
adversarial). While the ALJ sometimes has a duty to make further inquiry into a medical issue
beyond the immediate record, this duty only arises in certain circumstances, such as where the
ALJ cannot make a reasoned decision based on the information presented. See Dorn v. Astrue,
No. 10-CV-3923 JFB, 2012 WL 925713, at *7-10 (E.D.N.Y. Mar. 19, 2012). The record in this
case creates a largely coherent and consistent picture of Plaintiff’s anxiety and depression,
showing it to be a minor issue. As discussed above, although Dr. Viridia’s treatment records
sometimes note that Plaintiff has anxiety and/or depression, Plaintiff was never referred for a
psychiatric evaluation or given any medical treatment for his mental health conditions other than
prescriptions for Cymbalta and Lexapro. Lastly, Dr. Viridia’s medical source statement notes
that, while Plaintiff is severely limited in his ability to deal with work stress, emotional factors
do not contribute to the severity of his symptoms and functional limitations. Difficulties in
dealing with work stress do not necessarily mandate a psychological evaluation, especially given
the other evidence in the record about Plaintiff’s mental health. In the face of this evidence, there
was no duty for the ALJ to further develop the evidence about Plaintiff’s mental health.
Applicable law and substantial evidence support the ALJ’s decision to not order a consultative
evaluation.
14
Plaintiff cites the Second Circuit case of Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.
1998), for the proposition that the ALJ cannot arbitrarily rest on his own medical opinions rather
than those of a doctor:
[I]n this case the Commissioner failed to offer and the ALJ did not cite any
medical opinion to dispute the treating physicians’ conclusions that Balsamo
could not perform sedentary work. In the absence of a medical opinion to support
the ALJ’s finding as to Balsamo’s ability to perform sedentary work, it is wellsettled that the ALJ cannot arbitrarily substitute his own judgment for competent
medical opinion. . . . [W]hile an [ALJ] is free to resolve issues of credibility as to
lay testimony or to choose between properly submitted medical opinions, he is not
free to set his own expertise against that of a physician who [submitted an opinion
to or] testified before him.
Id. at 81 (emphasis in original) (citations omitted) (internal quotation marks omitted). Balsamo,
however, is distinguishable from the instant case. While the ALJ in Balsamo did not point to any
medical opinion evidence to support his conclusions, here the ALJ did cite to medical evidence
to support his findings whenever those findings conflicted with Dr. Viridia’s medical source
statement. Therefore, this is not a situation where the ALJ has impermissibly replaced a doctor’s
opinion with his own judgment as to resolution of a medical issue. See also Bloom v. Astrue, No.
CIV. SKG-08-827, 2009 WL 2449877, at *21 (D. Md. Aug. 7, 2009) (discussing evidence cited
by the ALJ to support findings). Even more importantly, it is clear that the ALJ has not
substituted his own judgment regarding Plaintiff’s mental health issues for medical opinions
because, as explained above, the ALJ’s findings are consistent with the medical record.
Lastly, Plaintiff argues that the approach taken by the Magistrate regarding Dr. Viridia’s
medical source statement is internally inconsistent. Specifically, Plaintiff faults the Magistrate
for approving the ALJ’s decision to give “no weight” to Dr. Viridia’s opinion on the one hand,
yet justifying the findings about Plaintiff’s depression using a portion of that same medical
opinion. Plaintiff suggests that it is inconsistent to follow Dr. Viridia’s recommendations
regarding the effect of Plaintiff’s depression, yet ignore Dr. Viridia’s recommendations about
15
work-related limitations. The ALJ, however, is not required to adopt or reject a medical source
statement in its entirety. Rather, that ALJ may consider solely those portions which are
consistent with the record as a whole. Furthermore, although the ALJ did state that he gave Dr.
Viridia’s opinion “no weight,” it is clear, upon a review of the whole decision, that the ALJ was
only referring to Dr. Viridia’s recommendations as to Plaintiff’s functional limitations. This
slight imprecision in the wording of the ALJ’s opinion is not reversible error.
In summary, for the reasons stated above, the ALJ did not err by not ordering a
psychological evaluation, and Plaintiff’s objection is denied.
VII.
Conclusion
For the reasons explained above, the Court DENIES Plaintiff’s objections (ECF No. 18)
and ACCEPTS and INCORPORATES the PF&R of the Magistrate Judge (ECF No. 17). The
Court GRANTS the Commissioner’s motion for judgment on the pleadings (ECF No. 15),
DENIES the like motion of Plaintiff (ECF No. 12), and DISMISSES with prejudice Plaintiff’s
Complaint (ECF No. 2).
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
Magistrate Judge Eifert, counsel of record and any unrepresented parties.
ENTER: March 31, 2014
16
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