Hearon v. Colvin

Filing 16

MEMORANDUM OPINION DENYING Plaintiff's 12 MOTION for Judgment on the Pleadings; GRANTING Defendant's 13 MOTION for Judgment on the Pleadings; AFFIRMING the final decision of the Commissioner and DISMISSING this matter from the docket of this Court. Signed by Magistrate Judge Omar J. Aboulhosn on 3/23/2016. (cc: attys) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
ROGER BRANDON HEARON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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MEMORANDUM

CIVIL ACTION NO. 3:14-18229

OPINION

This is an action seeking review of the decision of the Commissioner of Social Security
denying Plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security
Income (SSI), under Titles II and XVI of the Social Security Act, 42 U.S.C. '' 401-433, 13811383f. This case presently is pending before the Court on the Parties= cross-Motions for Judgment
on the Pleadings. (Document Nos. 12 and 13.) Both parties have consented in writing to a decision
by the United States Magistrate Judge. (Document Nos. 4 and 6.)
The Plaintiff, Roger Brandon Hearon (hereinafter referred to as AClaimant@), filed
applications for DIB and SSI on February 23, 2011 (protective filing date), alleging disability as
of January 1, 2008, due to “learning disability, bipolar, anger management problems, problems
getting along with others, problems reading and understanding English, problems writing and
spelling, comprehension problems, short memory, anxiety, [and] migraine headaches.@ (Tr. at 10,
142-47, 148-56, 167, 171.) The claims were denied initially and upon reconsideration. (Tr. at 10,
61-64, 65-67, 70-72, 81-83, 85-87, 88-90, 92-94, .) On November 14, 2011, Claimant requested a
hearing before an Administrative Law Judge (ALJ). (Tr. at 95-96.) The hearing was held on
December 28, 2012, before the Honorable Robert B. Bowling. (Tr. at 26-60.) By decision dated

February 1, 2013, the ALJ determined that Claimant was not entitled to benefits. (Tr. at 10-20.)
The ALJ=s decision became the final decision of the Commissioner on April 8, 2014, when the
Appeals Council denied Claimant=s request for review. (Tr. at 1-5.) On June 12, 2014, Claimant
brought the present action seeking judicial review of the administrative decision pursuant to 42
U.S.C. ' 405(g). (Document No. 2.)
Under 42 U.S.C. ' 423(d)(5), a claimant for disability has the burden of proving a
disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as
the "inability to engage in any substantial gainful activity by reason of any medically determinable
impairment which can be expected to last for a continuous period of not less than 12 months . . .
." 42 U.S.C. ' 423(d)(1)(A).
The Social Security Regulations establish a "sequential evaluation" for the adjudication of
disability claims. 20 C.F.R. '' 404.1520, 416.920 (2013). If an individual is found "not disabled"
at any step, further inquiry is unnecessary. Id. '' 404.1520(a), 416.920(a). The first inquiry under
the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. ''
404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from
a severe impairment. Id. '' 404.1520(c), 416.920(c). If a severe impairment is present, the third
inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1
to Subpart P of the Administrative Regulations No. 4. Id. '' 404.1520(d), 416.920(d). If it does,
the claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether
the claimant's impairments prevent the performance of past relevant work. 20 C.F.R. ''
404.1520(e), 416.920(e). By satisfying inquiry four, the claimant establishes a prima facie case of
disability. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the
Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth
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and final inquiry: whether the claimant is able to perform other forms of substantial gainful
activity, considering claimant's remaining physical and mental capacities and claimant's age,
education and prior work experience. 20 C.F.R. '' 404.1520(f), 416.920(f) (2013). The
Commissioner must show two things: (1) that the claimant, considering claimant=s age, education,
work experience, skills and physical shortcomings, has the capacity to perform an alternative job,
and (2) that this specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d
572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the Social Security Administration Amust
follow a special technique at every level in the administrative review process.@ 20 C.F.R. ''
404.1520a(a) and 416.920a(a). First, the SSA evaluates the claimant=s pertinent symptoms, signs
and laboratory findings to determine whether the claimant has a medically determinable mental
impairment and documents its findings if the claimant is determined to have such an impairment.
Second, the SSA rates and documents the degree of functional limitation resulting from the
impairment according to criteria as specified in 20 C.F.R. '' 404.1520a(c) and 416.920a(c). Those
sections provide as follows:
(c) Rating the degree of functional limitation. (1)Assessment of functional
limitations is a complex and highly individualized process that requires us to
consider multiple issues and all relevant evidence to obtain a longitudinal picture
of your overall degree of functional limitation. We will consider all relevant and
available clinical signs and laboratory findings, the effects of your symptoms, and
how your functioning may be affected by factors including, but not limited to,
chronic mental disorders, structured settings, medication and other treatment.
(2) We will rate the degree of your functional limitation based on the extent
to which your impairment(s) interferes with your ability to function independently,
appropriately, effectively, and on a sustained basis. Thus, we will consider such
factors as the quality and level of your overall functional performance, any episodic
limitations, the amount of supervision or assistance you require, and the settings in
which you are able to function. See 12.00C through 12.00H of the Listing of
Impairments in appendix 1 to this subpart for more information about the factors
we consider when we rate the degree of your functional limitation.
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(3) We have identified four broad functional areas in which we will rate the
degree of your functional limitation: Activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. See 12.00C
of the Listings of Impairments.
(4) When we rate the degree of limitation in the first three functional areas
(activities of daily living, social functioning; and concentration, persistence, or
pace), we will use the following five-point scale: None, mild, moderate, marked,
and extreme. When we rate the degree of limitation in the fourth functional area
(episodes of decompensation), we will use the following four-point scale: None,
one or two, three, four or more. The last point on each scale represents a degree of
limitation that is incompatible with the ability to do any gainful activity.
Third, after rating the degree of functional limitation from the claimant=s impairment(s), the SSA
determines their severity. A rating of Anone@ or Amild@ in the first three functional areas (activities
of daily living, social functioning; and concentration, persistence, or pace) and Anone@ in the fourth
(episodes of decompensation) will yield a finding that the impairment(s) is/are not severe unless
evidence indicates more than minimal limitation in the claimant=s ability to do basic work
activities. 20 C.F.R. '' 404.1520a(d)(1) and 416.920a(d)(1).

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Fourth, if the claimant=s

impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe
impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate

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20 C.F.R. Pt. 404, Subpt. P, App. 1, ' 12.04, provides that affective
disorders, including depression, will be deemed severe when (A) there is medically
documented continuous or intermittent persistence of specified symptoms and (B)
they result in two of the following: marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence or pace; or repeated episodes of
decompensation , each of extended duration or (C) there is a medically documented
history of a chronic affective disorder of at least 2 years= duration that has caused
more than a minimal limitation of ability to do basic work activities with symptoms
currently attenuated by medication or psychosocial support and (1) repeated
extended episodes of decompensation; (2) a residual disease process resulting in
such marginal adjustment that a minimal increase in mental demands or change in
the environment would cause decompensation; or (3) a current history of 1 or more
years= inability to function outside a highly supportive living arrangement, and the
indication of a continued need for such an arrangement.
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listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental
disorder. 20 C.F.R. '' 404.1520a(d)(2) and 416.920a(d)(2). Finally, if the SSA finds that the
claimant has a severe mental impairment(s) which neither meets nor equals a listed mental
disorder, the SSA assesses the Claimant=s residual functional capacity. 20 C.F.R. ''
404.1520a(d)(3) and 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:
At the administrative law judge hearing and the Appeals Council levels, the written
decision issued by the administrative law judge and the Appeals Council must
incorporate the pertinent findings and conclusions based on the technique. The
decision must show the significant history, including examination and laboratory
findings, and 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 of the functional
areas described in paragraph (c) of this section.
20 C.F.R. '' 404.1520a(e)(2) and 416.920a(e)(2) (2013).
In this particular case, the ALJ determined that Claimant satisfied the first inquiry because
he had not engaged in substantial gainful activity since January 1, 2008, the alleged onset date.
(Tr. at 12, Finding No. 2.) Under the second inquiry, the ALJ found that Claimant suffered from Aan
organic mental disorder, an affective disorder, a personality disorder, and a substance addiction
disorder,@ which were severe impairments. (Tr. at 12, Finding No. 3.) At the third inquiry, the ALJ
concluded that Claimant=s impairments did not meet or equal the level of severity of any listing in
Appendix 1. (Tr. at 12, Finding No. 4.) The ALJ then found that Claimant had a residual functional
capacity to perform a full range of work at all exertional levels with the following non-exertional
limitations:
[T]he work must be limited to simple, routine, and repetitive tasks performed in a work
environment free of fast paced production requirements, involving only simple, work-

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related decisions and with few, if any, work place changes. Finally, the [C]laimant
should only occasionally interact with the public and coworkers.
(Tr. at 15, Finding No. 5.) At step four, the ALJ found that Claimant was able to perform his past
relevant work as a cleaner and a potato peeler. (Tr. at 18, Finding No. 6.) On the basis of testimony of
a Vocational Expert (AVE@) taken at the administrative hearing, the ALJ further concluded that
Claimant could perform jobs such as a laundry worker and groundskeepr, at the unskilled, medium
level of exertion; as a small products assembler and house sitter, at the unskilled, light level of exertion;
and as a bench worker and a final assembler, at the unskilled, sedentary level of exertion. (Tr. at 1920, Finding No. 6.) On these bases, benefits were denied. (Tr. at 20, Finding No. 7.)
Scope of Review
The sole issue before this Court is whether the final decision of the Commissioner denying the
claim is supported by substantial evidence. In Blalock v. Richardson, substantial evidence was defined
as:
evidence which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be somewhat
less than a preponderance. If there is evidence to justify a refusal to direct a verdict
were the case before a jury, then there is >substantial evidence.=
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640,
642 (4th Cir. 1966)). Additionally, the Commissioner, not the Court, is charged with resolving conflicts
in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Nevertheless, the Courts Amust
not abdicate their traditional functions; they cannot escape their duty to scrutinize the record as a whole
to determine whether the conclusions reached are rational.@ Oppenheim v. Finch, 495 F.2d 396, 397
(4th Cir. 1974).
A careful review of the record reveals the decision of the Commissioner is supported by
substantial evidence.

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Claimant=s Background
Claimant was born on January 7, 1984, and was 28 years old at the time of the administrative
hearing, December 28, 2012. (Tr. at 18, 144, 148.) Claimant had an eighth grade, or marginal education
and was able to communicate in English. (Tr. at 18, 170, 172.). Claimant had past relevant work as a
cleaner and potato peeler. (Tr. at 18, 173, 178-91.)
The Medical Record.
The Court has reviewed all the evidence of record, including the medical evidence, and will
discuss it below in relation to Claimant=s arguments.2
William J. Given, M.A.:
On September 25, 2008, Mr. Given, a licensed psychologist, conducted a mental status
examination and mental testing, at the request of the West Virginia Disability Determination Service
(“DDS”). (Tr. at 326-34.) Claimant reported learning deficits that required special education attention
in school, difficulty remembering things, paranoia, a dislike of being around others, anger control
problems, bipolar disorder. (Tr. at 327.) He stated that normal interaction with others caused frequent
anger and control problems, poor sleep, audible hallucinations, racing thoughts, and some panic
attacks. (Id.) Claimant indicated that his uncontrollable anger led him to quit or caused him to be fired
from every job that he had. (Tr. at 328.) Claimant reported excessive alcohol use for the last two or
three years, and that he drank eight to ten beers and six or seven shots of whisky, three or four times a
week for the last year. (Tr. at 328-29.) He dropped out of school at the age of 16 when in the eighth
grade because he was “too far behind.” (Tr. at 329.) He was retained twice in the sixth, seventh, and
eighth grades and had learning deficits in all subjects. (Id.) He attempted to obtain his GED when on
probation several years earlier, but was unable to obtain it. (Id.) He obtained a learner’s driver permit

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Claimant alleges error only respecting his mental impairments. The Court therefore, limits the summary of the
evidence to that related to Claimant’s mental impairments.

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at the age of 16, upon his second or third attempt. (Id.)
On mental status examination, Mr. Given observed that Claimant maintained adequate eye
contact, displayed an appropriate sense of humor, gave appropriate responses, spoke spontaneously,
and exhibited clear speech. (Tr. at 330.) Claimant was oriented and alert, had a normal mood and
appropriate affect, and his insight was fair. (Tr. at 331.) Nevertheless, Mr. Given assessed mild
deficiencies in immediate memory and social functioning; moderate deficiencies in judgment and
remote memory; and marked deficiencies in recent memory and concentration. (Tr. at 331, 333.)
Results of the WAIS-III revealed a Verbal IQ of 66, a Performance IQ of 62, and a Full Scale IQ of
62. (Tr. at 331.) Mr. Given concluded that the WAIS-III results were invalid because Claimant
responded “don’t know” to half of the verbal items and his results considerably were lower than
expected when compared to his expressive skills, understanding of the examiner’s intentions, and sense
of humor. (Tr. at 332.) Results of the WRAT-3 revealed that Claimant was reading at a second grade
level and performed math and spelling at a first grade level. (Id.) Mr. Given assessed that the results
“likely provide a reasonably valid estimate of his academic skills, consistent with his report of early
educational experiences.” (Id.)
Mr. Given diagnosed alcohol dependence, with psychological dependence; alcohol induced
psychotic disorder, with hallucinations, with onset during withdrawal; opioid abuse; reading disorder
NOS; mathematics disorder; mood disorder NOS; features of attention-deficit/hyperactivity disorder;
and a provisional diagnosis of borderline intellectual functioning. (Tr. at 332.) He noted Claimant’s
daily activities to have included playing video games, watching television, listening to the radio,
performing personal care, eating out several times a week, playing with his daughter at least once
weekly, taking out the trash, and cleaning his room twice a week. (Tr. at 333.) Mr. Given opined that
Claimant’s prognosis was poor, his persistence especially was poor, and his pace was variable from

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very slow to very quick discontinuance. (Tr. at 333-34.) He further opined that Claimant’s ability “to
attend regularly or keep a daily schedule is hampered by sleep disorder and intermittent withdrawal
symptoms.” (Tr. at 334.)
Penny O. Perdue, M.A.:
On March 31, 2009, Ms. Perdue conducted a mental status evaluation, at which time Claimant
reported daily depression with a two to three year history, lack of interest in things, poor appetite,
excessive sleeping, low energy, feelings of worthlessness, poor concentration, and hallucinations when
he attempts to sleep. (Tr. at 335-38.) Ms. Perdue noted on mental status examination that Claimant
appeared with fair grooming and hygiene, was cooperative and interacted appropriately, maintained
adequate eye contact, gave adequate verbal responses without spontaneous generation of conversation,
and exhibited understandable, but mumbling speech. (Tr. at 336.) Claimant was oriented, had a
somewhat depressed mood with a slightly restricted affect, and presented with fair insight and normal
remote memory, social functioning, and persistence. (Tr. at 336-38.) Ms. Perdue opined that Claimant
had mild deficiencies in judgment, concentration, pace, and immediate memory and marked
deficiencies in recent memory. (Id.) She diagnosed major depressive disorder, single episode,
unspecified; social phobia; and polysubstance dependence, early full remission. (Tr. at 337.) She noted
excessive anxiety around others and past excessive use of alcohol, as well as excessive use of Xanax
and Oxycodone in 2008. (Id.) She noted his activities to have included watching television, taking out
the trash, helping with the chores, and maintaining his personal care. (Id.)
Prestera Center for Mental Health Services:
Claimant treated at Prestera Center for his mental impairments from April 27, 2009, through
April 18, 2011. (Tr. at 436-83, 716-745, 746-76.) On April 18, 2011, Claimant requested outpatient
services until he was able to find inpatient placement for or in a Suboxone clinic. (Tr. at 453, 763.) He

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reported opiate abuse with daily use, withdrawal, and tolerance; anxiety with excessive worrying and
agitations; loss of appetite and weight loss; low energy; hostility; hyposomnia with about ten to twelve
hours of sleep per day; withdrawal; and poor concentration. (Id.) Mental status examination revealed
that although he was withdrawn, he had normal speech, thought content, orientation, and memory. (Tr.
at 454-55, 764-65.) He had deficient coping skills, a blunted affect, and agitated motor activity. (Tr. at
455, 765.) He was diagnosed with opioid dependence. (Tr. at 456, 766.)
Emily E. Wilson, M.A.:
On September 2, 2011, Ms. Wilson, a licensed psychologist, conducted a mental status
examination at the request of DDS. (Tr. at 498-503.) Claimant denied symptoms of depression,
unhappiness, sadness, or worrying. (Tr. at 499.) He also reported no change in his appetite, weight, or
sleep and denied any difficulty sleeping. (Id.) Claimant reported that his main problem was his dislike
to be around others. (Id.) Ms. Wilson noted on mental status examination that Claimant presented with
average grooming and hygiene, was cooperative, interacted in a guarded and shy fashion, maintained
intermittent eye contact, was oriented fully, exhibited relevant and coherent speech, and had a restricted
and depressed mood and affect. (Tr. at 501.) Ms. Wilson opined that Claimant’s persistence, pace, and
immediate memory were within normal limits; his judgment and remote memory were below average;
his concentration and recent memory were moderately deficient; and he exhibited slowed psychomotor
activity. (Id.) Claimant reported that he did not have any friends and avoided associating with people.
(Id.) Ms. Wilson diagnosed learning disorder NOS; history of alcohol, opioid, and anxiolytic abuse, by
previous reports; personality disorder NOS, with features of paranoid, schizoid, antisocial, and
borderline personality; and rule out borderline intellectual functioning. (Id.) She noted that her
diagnoses were based on Claimant’s reported symptoms and history. (Tr. at 501-02.) She opined that
Claimant’s prognosis was guarded if he was able to obtain consistent and appropriate psychotropic and

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psychological intervention. (Tr. at 502.)
Dr. Jeff Boggess, Ph.D.:
On September 12, 2011, Dr. Boggess, a state agency reviewing medical consultant, completed
a form Mental RFC Assessment, on which he opined that Claimant had moderate limitations in his
ability to interact appropriately with the general public and understand, remember, and carry out
detailed instructions. (Tr. at 504-07.) He opined that Claimant retained “the ability for routine work
like activity with limited contact with the general public.” (Tr. at 506.) Dr. Boggess also completed a
form Psychiatric Review Technique, on which he opined that Claimant’s borderline intellectual
functioning, depressive disorder NOS, and personality disorder NOS resulted in no restrictions of daily
activities or episodes of decompensation of extended duration and moderate difficulties in maintaining
social functioning, concentration, persistence, or pace. (Tr. at 508-21.) Dr. Boggess noted that
Claimant’s primary issue was drug and alcohol abuse. (Tr. at 520.)
Dr. Scott Davis, M.D.:
On March 29, 2012, Claimant reported bipolar disorder, depression, and anger management
problems and that he had stopped seeking treatment from Prestera due to the way he felt after taking
the prescribed medication. (Tr. at 540-41.) He stated that he occasionally drank a beer once a month
and denied a history of illicit drug abuse. (Tr. at 540.) Dr. Davis advised Claimant to see a psychiatrist
regarding the need for mood stabilizers for his bipolar, depression, and anxiety. (Tr. at 542.)
Nevertheless, Dr. Davis prescribed Vistaril 25mg for anxiety. (Id.) Claimant acknowledged that he
would consider returning to Prestera and would see Dr. Masilamani in the interim. (Id.) On May 10,
2012, Claimant reported that he was compliant with the Vistaril and intended to see Dr. Masilamani
on May 30. (Tr. at 537.) Dr. Davis continued Claimant on the Vistaril for anxiety and sleep difficulties
and initiated Propranolol 40mg to help with his worsened anxiety until his appointment with Dr.

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Masilamani. (Id.) On September 13, 2012, Dr. Davis noted that Claimant was non-compliant with his
Propranolol. (Tr. at 536.) Dr. Davis advised Claimant to follow-up with Prestera Center, and continued
his Vistaril. (Id.)
Prestera Center:
Claimant returned to Prestera Center on September 13, 2012. (Tr. at 739.) Claimant reported
anxiety with excessive worrying, agitation, restlessness, and panic attacks several times per day;
insomnia with difficulty falling asleep and frequent awakenings; depression with withdrawal,
irritability, and loss of interest in previously enjoyed activities; mania with history of not sleeping for
days, too much energy, racing thoughts, and impulsivity with history of poor judgment, auditory
hallucinations, and low self-esteem. (Tr. at 723.) He stated that he avoided interacting with others due
to anxiety. (Id.) He also reported frequent conflict with his mother. (Tr. at 724.) Mental status
examination revealed that Claimant was inhibited but had normal appearance, speech, thought content,
and memory; deficient coping skills; a blunted affect; agitated psychomotor activity; and full
orientation. (Tr. at 724-25.) He was diagnosed with bipolar disorder NOS, agoraphobia with panic
disorder, a history of opiate dependence, and was assessed with a GAF of 55.3 (Tr. at 726-27, 743.)
Claimant was assessed with a good prognosis and scheduled for outpatient medication and therapy.
(Tr. at 742) On October 25, 2012, it was noted that Claimant continued to have some panic attacks but
no side effects from his medications. (Tr. at 717.)
Claimant=s Challenges to the Commissioner=s Decision
Claimant alleges that the Commissioner=s decision is not supported by substantial evidence

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The Global Assessment of Functioning (AGAF@) Scale is used to rate overall psychological functioning on a scale
of 0 to 100. A GAF of 51-60 indicates that the person has A[m]oderate symptoms . . . or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).@ American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (ADSM-IV@) 32 (4th ed. 1994).

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because the ALJ failed to consider all of his mental limitations when assessing his RFC. (Document
No. 12 at 5-6.) Claimant asserts that in assessing his RFC, the ALJ summarily rejected the opinion of
Mr. Given and arbitrarily assigned varying weight to the opinion of Ms. Wilson. (Id. at 6.) Claimant
draws attention to Mr. Given’s opinions that Claimant was unable to manage his finances, had
decreased ability to maintain attendance on a daily basis due to his sleep disorder and intermittent
withdrawal symptoms, and had mild deficiencies in social functioning and marked deficiencies in
maintaining concentration. (Id. at 5.) Respecting Ms. Wilson, Claimant highlights her opinions that his
prognosis was guarded even with psychotropic intervention, he required financial management
assistance, and his thoughts of his environment deviated markedly from the expectations of his culture.
(Id.) Consequently, Claimant asserts that the ALJ did not consider adequately and accurately all of his
mental limitations. (Id.)
In response, the Commissioner contends that substantial evidence supports the ALJ’s finding
that Mr. Given’s opinion was not entitled any weight. (Document No. 13 at 9-12.) Addressing Mr.
Given’s opinions, the Commissioner first asserts that the opinion predates the relevant period but in
any event that the ALJ assessed moderate difficulties in maintaining social functioning, which was
greater limitation than assessed by Mr. Given. (Id. at 10.) The ALJ therefore, did not err respecting
Claimant’s social functioning. (Id.) Second, the Commissioner asserts that although Claimant’s
concentration on testing was noted as a marked deficiency, his ability to concentrate otherwise was
near average. (Id.) The Commissioner points out that Dr. Perdue assessed only mild deficiencies and
Ms. Wilson assessed only moderate deficiencies in concentration. (Id.) Third, the Commissioner notes
that respecting Claimant’s ability to maintain a daily schedule, the record fails to support a sleep
disorder diagnosis and his abnormal sleep pattern was mentioned only to Mr. Given. (Id. at 11.)
Furthermore, his substance abuse related withdrawal symptoms were in remission. (Id.) Finally, the

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Commissioner asserts that the ALJ limited Claimant to performing simple, routine, and repetitive tasks
that involved only simple, work-related decisions, which excluded financial management. (Id. at 1112.) Consequently, the Commissioner asserts that the ALJ did not need to address Mr. Given’s single
limitation regarding financial management. (Id. at 12.)
Respecting Ms. Wilson’s opinions, the Commissioner asserts that on examination, Ms. Wilson
noted some limitations in social functioning, mood, judgment, memory, and concentration but noted
that the exam otherwise, was unremarkable. (Document No. 13 at 12.) The Commissioner contends
that the ALJ accommodated Ms. Wilson’s limitations in his RFC. (Id.) The Commissioner asserts that
Claimant “pulls three statement out of context from other portions of Ms. Wilson’s report, and argues
that these statements undermine the ALJ’s RFC.” (Id.) In the proper context, the Commissioner asserts
that the statements fail to provide any basis to disturb the ALJ’s determination. (Id.) First, the
Commissioner asserts that Claimant’s prognosis was irrelevant to the ALJ’s RFC assessment, which
was not dependent on the success of Claimant’s treatment. (Id. at 13.) Second, the Commissioner
asserts that Claimant failed to identify how the ALJ should have accounted for Ms. Wilson’s statement
regarding his culture. (Id.) Finally, the Commissioner asserts that Claimant failed to identify any
further limitations the ALJ could have assessed to accommodate his requiring assistance in managing
his finances. (Id.) Accordingly, the Commissioner contends that the ALJ’s RFC assessment and
weight assigned to the opinions of Mr. Givens and Ms. Wilson were supported by substantial evidence.
(Id.)
Claimant also alleges that the Commissioner=s decision is not supported by substantial evidence
because the ALJ improperly assessed his credibility. (Document No. 12 at 6-7.) Citing Coffman v.
Bowen, 829 F.2d 514 (4th Cir. 1987), Claimant argues that he satisfied the requirements of 42 U.S.C.
' 423(d)(5)(A), as his allegations and the medical evidence are mutually supportive. (Id.) He asserts

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that the objective evidence supports his allegations of disability, as does the opinions of Mr. Given and
Ms. Wilson.
In response, the Commissioner asserts that Claimant’s argument is based on “an incorrect
formulation of the applicable law.” (Document No. 13 at 14.) The Commissioner asserts that this Court
has advised on multiple occasions that there is no mutually supportive test applicable to the ALJ’s
assessment of a claimant’s credibility. (Id.) Rather, the Commissioner contends that the ALJ was
required to use a two-step process, which was utilized. (Id.) In assessing Claimant’s credibility, the
Commissioner asserts that the ALJ properly determined that Claimant’s daily activities were not
limited to the extent one would expect given Claimant’s subjective complaints and limitations. (Id. at
15.) The ALJ also properly concluded that the objective evidence undermined Claimant’s subjective
complaints. (Id. at 16.) Finally, the Commissioner asserts that the ALJ properly noted that Claimant
failed to comply with prescribed treatment, which undermined his credibility. (Id.) Accordingly, the
Commissioner contends that the ALJ’s decision that Claimant was not entirely credible, is supported
by substantial evidence. (Id.)

Analysis.
1. RFC Assessment.
Claimant first alleges that the ALJ failed to consider SSR 96-9p in assessing his RFC.
(Document No. 12 at 5-6.) ARFC represents the most that an individual can do despite his or her
limitations or restrictions.@ See Social Security Ruling 96-8p, 61 Fed. Reg. 34474, 34476 (1996).
Pursuant to SSR 96-8p, the RFC assessment Amust be based on all of the relevant evidence in the
case record,@ including A the effects of treatment@ and the Alimitations or restrictions imposed by
the mechanics of treatment; e.g., frequency of treatment, duration, disruption to routine, side
effects of medication.@ Looking at all the relevant evidence, the ALJ must consider the claimant=s
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ability to meet the physical, mental, sensory and other demands of any job. 20 C.F.R. ''
404.1545(a), 416.945(a) (2013). AThis assessment of your remaining capacity for work is not a
decision on whether you are disabled, but is used as the basis for determining the particular types
of work you may be able to do despite your impairment(s).@ Id. AIn determining the claimant's
residual functional capacity, the ALJ has a duty to establish, by competent medical evidence, the
physical and mental activity that the claimant can perform in a work setting, after giving
appropriate consideration to all of her impairments.@ Ostronski v. Chater, 94 F.3d 413, 418 (8th
Cir. 1996).
Opinions on a claimant’s Residual Functional Capacity are issues that are reserved to the
Commissioner. The Regulations state that:
We use medical sources, including your treating source, to provide evidence,
including opinions, on the nature and severity of your impairment(s). Although we
consider opinions from medical sources on issues such as whether your
impairment(s) meets or equals the requirements of any impairment(s) in the Listing
of Impairments in appendix 1 to subpart P of part 404 of this chapter, your residual
functional capacity . . . or the application of vocational factors, the final
responsibility for deciding these issues is reserved to the Commissioner.

See 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2) (2013).
In determining what a claimant can do despite his limitations, the SSA must
consider the entire record, including all relevant medical and nonmedical evidence,
such as a claimant's own statement of what he or she is able or unable to do. That
is, the SSA need not accept only physicians’ opinions. In fact, if conflicting
medical evidence is present, the SSA has the responsibility of resolving the conflict.
Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995) (citations omitted).
The Regulations state that opinions on these issues are not medical opinions as described
in the Regulation dealing with opinion evidence (20 C.F.R. §§ 404.1527(a)(2) and 416.927(a)(2));
rather, they are opinions on issues reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e) and
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416.927(e). For that reason, the Regulations make clear that “[w]e will not give any special
significance to the source of an opinion on issues reserved to the Commissioner. . . .” Id. §§
404.1527(e)(3) and 416.927(e)(3). The Regulations further provide that “[f]or cases at the
Administrative Law Judge hearing or Appeals Council level, the responsibility for deciding your
residual functional capacity rests with the Administrative Law Judge or Appeals Council.” See 20
C.F.R. §§ 404.1545 and 416.946 (2012). However, the adjudicator must still apply the applicable
factors in 20 C.F.R. § 416.927(d) when evaluating the opinions of medical sources on issues
reserved to the Commissioner. See Social Securing Ruling (“SSR”) 96-5p, 61 FR 34471, 34473
(1996).
Social Security Ruling 96-5p makes a distinction between an RFC assessment, which is
“the adjudicator’s ultimate finding of ‘what you can still do despite your limitations,’” and a
“‘medical source statement,’ which is a ‘statement about what you can still do despite your
impairment(s)’ made by an individual’s medical source and based on that source’s own medical
findings.” Id. SSR 96-5p states that “[a] medical source statement is evidence that is submitted to
SSA by an individual’s medical source reflecting the source’s opinion based on his or her own
knowledge, while an RFC assessment is the adjudicator’s ultimate finding based on a consideration
of this opinion and all the other evidence in the case record about what an individual can do despite
his or her impairment(s).” Adjudicators “must weigh medical source statements under the rules set
out in 20 C.F.R. § 416.927, providing appropriate explanations for accepting or rejecting such
opinions.” Id. at 34474.
As stated above, the ALJ found that Claimant was limited to simple, routine, and repetitive
tasks, without fast paced production requirements and was capable of making only simple, workrelated decisions, with few workplace changes and occasional interaction with the public and coworkers. (Tr. at 15.) The ALJ concluded that Claimant’s mental impairments resulted in no
restrictions in daily activities or episodes of decompensation of extended duration and moderate
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difficulties in maintaining social functioning, concentration, persistence, or pace. (Tr. at 13-14.)
Regarding social functioning, the ALJ noted that Claimant was cooperative and maintained
appropriate eye contact on examinations. (Tr. at 13.) Respecting concentration, the ALJ noted that
treatment notes reflected that he was alert and oriented, had normal thought content, demonstrated
some memory deficits, and exhibited a lack of hallucinations or delusions. (Tr. at 13-14.)
The ALJ gave no weight to the opinions of Dr. Given because his opinions were given
prior to the period at issue and were inconsistent with the objective and opinion evidence of record.
(Tr. at 17.) As stated above, Dr. Given opined that Claimant had mild deficiencies in immediate
memory and social functioning; moderate deficiencies in judgment and remote memory; and
marked deficiencies in recent memory and concentration. (Tr. at 17, 331, 333.) Dr. Given further
opined that Claimant’s ability to maintain a daily schedule was hampered by his sleep disorder and
intermittent withdrawal symptoms. (Tr. at 17, 334.) The ALJ found that Dr. Given’s opinion was
inconsistent with the other opinion evidence, which consisted of Ms. Perdue, who opined that
Claimant had normal remote memory, social functioning, and persistence; mild deficiencies in
judgment, concentration, pace, and immediate memory; and marked deficiencies in recent
memory. (Tr. at 17, 336-38.) The ALJ also noted that Dr. Given’s opinion was inconsistent with
Ms. Wilson’s opinion that Claimant had normal persistence, pace, and immediate memory; below
average judgment and remote memory; and moderately deficient concentration and recent
memory. (Tr. at 17, 501.) Moreover, the ALJ found that Dr. Given’s opinion was inconsistent with
the opinion of the State agency medical consultant, Dr. Boggess, who assessed only moderate
limitations in social functioning, concentration, persistence, or pace; moderate limitations in his
ability to interact with the general public and understand, remember, and carry out detailed
instructions; and no restrictions in daily activities or episodes of decompensation. (Tr. art 17, 50418

20.) Dr. Given’s assessed marked deficiencies in concentration therefore, were inconsistent with
all the other evidence of record.
Although Dr. Given assessed only mild deficiencies in social functioning, the ALJ assessed
a greater limitation and found that Claimant had moderate difficulties in maintaining social
functioning. (Tr. at 13.) Consequently, the ALJ limited Claimant to work that involved only
occasional interaction with the general public and co-workers. (Tr. at 15.)
Claimant takes issue with the ALJ’s failure to rely upon Dr. Given’s opinion that his sleep
disorder and intermittent withdrawal symptoms prevent him from maintaining a daily work
schedule. As the Commissioner notes, the record is void of any evidence of a diagnosed sleep
disorder. Dr. Given noted Claimant’s subjective complaints that he fell asleep at five in the
morning and awoke at four in the evening. (Tr. at 333.) The record does not indicate otherwise
such extreme sleep patterns. Respecting his symptoms of withdrawal, Claimant testified at the
administrative hearing that he no longer took illicit drugs or drank alcohol. (Tr. at 41-42.)
Accordingly, any error that the ALJ may have committed in assigning no weight to this opinion of
Dr. Given’s is harmless.
Finally, Claimant notes Dr. Given’s opinion that he should not manage his finances.
Claimant however, fails to specify any limitation resulting from this inability, and therefore, the
Court finds that Claimant’s argument is without merit. The Court notes that both the ALJ and the
Commissioner stated that Dr. Given’s opinion preceded the relevant period at issue. Claimant filed
his applications for DIB and SSI on February 23, 2011, and alleged an onset date of January 1,
2008. (Tr. at 10, 142-47, 148-56, 167, 171.) Claimant confirmed the January 1, 2008, alleged onset
date at the administrative hearing. (Tr. at 30.) The Court found no indication in the record that
Claimant amended his alleged onset date. Accordingly, the Court finds that Dr. Given’s opinion
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was given within the period of time relevant to Claimant’s application for DIB: from his alleged
onset date, January 1, 2008, through his date last insured, December 31, 2008. Although the ALJ
stated that the timing of Dr. Given’s opinion was one reason he gave his opinion no weight, it is
clear from the ALJ’s decision that he also assigned the opinion no weight because it was
inconsistent with the other evidence of record. Accordingly, the Court finds that any error the ALJ
may have committed in finding that Dr. Given’s opinion preceded the relevant period, is harmless.
The ALJ gave great weight to the opinion of Ms. Wilson because her opinion generally
was consistent with the medical and opinion evidence of record. (Tr. at 17.) Claimant takes issue
with the ALJ’s failure to acknowledge Ms. Wilson’s opinion that his prognosis was guarded. As
the Commissioner asserts, the ALJ’s RFC was not dependent on the success of Claimant’s
treatment, but on his ability to function during the relevant period. Therefore, the ALJ was not
required to address Ms. Wilson’s prognosis. Claimant also takes issue with the ALJ’s failure to
acknowledge Ms. Wilson’s statement that his thoughts about his environment deviated markedly
from the expectations of his culture. Ms. Wilson made such a statement when she diagnosed
personality disorder NOS. (Tr. at 502.) She stated that such diagnosis was given due to Claimant’s
“enduring pattern of perceiving, relating to, and thinking about the environment and himself that
deviates markedly from the expectations of his culture.” (Id.) Claimant however, does not identify
any limitation that should have been assessed on the basis of such statement. As the Commissioner
suggests, to the extent that such a limitation could be assessed, the ALJ accommodated the
limitation when he limited Claimant to making only simple, work related decisions. In the absence
of any proposed limitation from Claimant, the Court finds the Commissioner’s position prevailing
and finds that the ALJ did not commit any error as Claimant alleges.
Finally, Claimant takes issue with Ms. Wilson’s statement that Claimant required
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assistance in managing his finances. As discussed above, Claimant fails to identify any limitation
that should have been assessed based on Ms. Wilson’s statement. Ms. Wilson did not identify any
limitations, as well. Accordingly, the Court finds that Claimant’s argument is without merit.
In view of the foregoing, the Court finds that the ALJ properly reviewed the opinion
evidence of record and that the weights assigned to the opinions of Dr. Given and Ms. Wilson are
supported by the substantial evidence of record. The Court further finds that the ALJ’s RFC
assessment is supported by substantial evidence of record.
2. Claimant=s Credibility.
Claimant also alleges that the ALJ erred in assessing his credibility. (Document No. 12 at
5-6.) A two-step process is used to determine whether a claimant is disabled by pain or other
symptoms. First, objective medical evidence must show the existence of a medical impairment that
reasonably could be expected to produce the pain or symptoms alleged. 20 C.F.R. '' 404.1529(b)
and 416.929(b) (2013); SSR 96-7p; See also, Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). A
claimant=s Astatements alone are not enough to establish that there is a physical or mental impairment.@
20 C.F.R. '' 404.1529(a) and 416.929(a) (2013). If such an impairment is established, then the
intensity and persistence of the pain or symptoms and the extent to which they affect a claimant=s
ability to work must be evaluated. Craig v. Chater, 76 F.3d at 595. When a claimant proves the
existence of a medical condition that could cause the alleged pain or symptoms, Athe claimant=s
subjective complaints [of pain] must be considered by the Secretary, and these complaints may not be
rejected merely because the severity of pain cannot be proved by objective medical evidence.@ Mickles
v. Shalala, 29 F.3d 918, 919 (4th Cir. 1994). Objective medical evidence of pain should be gathered
and considered, but the absence of such evidence is not determinative. Hyatt v. Sullivan, 899 F.2d
329, 337 (4th Cir. 1990). In Hines v. Barnhart, 453 F.3d 559, 565 n.3 (4th Cir. 2006) (citing Craig v.

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Chater, 76 F.3d at 595), the Fourth Circuit stated:
Although a claimant=s allegations about her pain may not be discredited solely because
they are not substantiated by objective evidence of the pain itself or its severity, they
need not be accepted to the extent they are inconsistent with the available evidence,
including objective evidence of the underlying impairment, and the extent to which
that impairment can reasonably be expected to cause the pain the claimant alleges she
suffers.
A claimant=s symptoms, including pain, are considered to diminish his capacity to work to the
extent that alleged functional limitations are reasonably consistent with objective medical and other
evidence.

20 C.F.R. '' 404.1529(c)(4) and 416.929(c)(4) (2013). Additionally, the Regulations

provide that:
[w]e will consider all of the evidence presented, including information about your prior
work record, your statements about your symptoms, evidence submitted by your
treating, examining, or consulting physician or psychologist, and observations by our
employees and other persons. . . . Factors relevant to your symptoms, such as pain,
which we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms.
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you
take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of
your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms
(e.g., lying flat on your back, standing for 15 or 20 minutes every hour, sleeping
on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain
or other symptoms.
20 C.F.R. '' 404.1529(c)(3) and 416.929(c)(3) (2013).

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SSR 96-7p repeats the two-step regulatory provisions:
First, the adjudicator must consider whether there is an underlying medically
determinable physical or mental impairment(s)--i.e., an impairment(s) that can be
shown by medically acceptable clinical and laboratory diagnostic techniques--that
could reasonably be expected to produce the individual=s pain or other symptoms. * *
* If there is no medically determinable physical or mental impairment(s), or if there is
a medically determinable physical or mental impairment(s) but the impairment(s) could
not reasonably be expected to produce the individual=s pain or other symptoms, the
symptoms cannot be found to affect the individual=s ability to do basic work activities.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the individual=s pain or other symptoms has been
shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of
the individual=s symptoms to determine the extent to which the symptoms limit the
individual=s ability to do basic work activities. For this purpose, whenever the
individual=s statements about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective medical evidence, the
adjudicator must make a finding on the credibility of the individual=s statements based
on a consideration of the entire case record.
SSR 96-7p, 1996 WL 374186 (July 2, 1996). SSR 96-7p specifically requires consideration of the
Atype, dosage, effectiveness, and side effects of any medication the individual takes or has taken to
alleviate pain or other symptoms@ in assessing the credibility of an individual=s statements.
Significantly, SSR 96-7p requires the adjudicator to engage in the credibility assessment as early as
step two in the sequential analysis; i.e., the ALJ must consider the impact of the symptoms on a
claimant=s ability to function along with the objective medical and other evidence in determining
whether the claimant=s impairment is Asevere@ within the meaning of the Regulations. A Asevere@
impairment is one which significantly limits the physical or mental ability to do basic work activities.
20 C.F.R. '' 404.1520(c) and 416.920(c).
Craig and SSR 96-7p provide that although an ALJ may look for objective medical evidence
of an underlying impairment capable of causing the type of pain alleged, the ALJ is not to reject a
claimant=s allegations solely because there is no objective medical evidence of the pain itself. Craig,
76 F.3d at 585, 594; SSR 96-7p (Athe adjudicator must make a finding on the credibility of the

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individual=s statements based on a consideration of the entire case record@). For example, the
allegations of a person who has a condition capable of causing pain may not be rejected simply because
there is no evidence of Areduced joint motion, muscle spasms, deteriorating tissues [or] redness@ to
corroborate the extent of the pain. Id. at 595. Nevertheless, Craig does not prevent an ALJ from
considering the lack of objective evidence of the pain or the lack of other corroborating evidence as
factors in his decision. The only analysis which Craig prohibits is one in which the ALJ rejects
allegations of pain solely because the pain itself is not supported by objective medical evidence.
The ALJ noted the requirements of the applicable law and Regulations with regard to assessing
pain, symptoms, and credibility. (Tr. at 15.) The ALJ found at the first step of the analysis that
Claimant=s Amedically determinable impairments could reasonably be expected to cause the alleged
symptoms.@ (Tr. at 17.) Thus, the ALJ made an adequate threshold finding and proceeded to consider
the intensity and persistence of Claimant=s alleged symptoms and the extent to which they affected
Claimant=s ability to work. (Tr. at 16-18.) At the second step of the analysis, the ALJ concluded that
Athe [C]laimant=s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.@ (Tr. at 16.)
Claimant argues that under the mutually supportive test recognized in Coffman v. Bowen, 829
F.2d 514 (4th Cir. 1987), that he satisfies the requirements of 42 U.S.C. ' 423(d)(5)(A), because the
evidence of record, including his testimony and statements, is supported by substantial evidence.
(Document No. 12 at 6-7.) Claimant has misinterpreted the holding in Coffman. In that case, the issue
was not one of credibility but whether the ALJ applied the appropriate standard in weighing the treating
physician=s opinion that the claimant was disabled from gainful employment. Coffman, 829 F.2d at
517-18. The Fourth Circuit concluded that the ALJ had misstated the legal principles and standards
and improperly discounted the physician=s opinion due to a lack of corroborating evidence. Id. at 518.

24

The Court held that the correct standard required a treating physician=s opinion to be Aignored only if
there is persuasive contradictory evidence.@ Id. There, the physician provided medical reports with his
opinion letter. Id. The record also included findings of two other physicians and the testimony of the
claimant. Id. In view of the of the supporting evidence, the Fourth Circuit noted that [b]ecause
Coffman=s complaints and his attending physician=s findings were mutually supportive, they would
satisfy even the more exacting standards of the Social Security Disability Benefits Reform act of 1984,
42 U.S.C. ' 423(d)(5)(A).@ Id. Accordingly, the undersigned finds contrary to Claimant=s argument
that Coffman fails to offer any Amutually supportive@ test applicable to assessing a claimant=s
credibility. For the reasons set forth herein, the undersigned finds Coffman inapposite and Claimant=s
argument without merit.

Respecting Claimant=s mental impairments, the record reflects that the ALJ assessed
Claimant’s credibility pursuant to the Rules and Regulations. The ALJ acknowledged Claimant’s
testimony that his impairments affected his memory and ability to talk, complete tasks,
concentrate, understand, follow instructions, and get along with others. (Tr. at 15.) Claimant also
testified as to his perceived limitations. (Id.) The ALJ next acknowledged Claimant’s reported
daily activities. Claimant was able to care for his personal needs, was able to cook and clean, took
out the trash, mowed the yard, was capable of driving, and watched television. (Tr. at 15-16.) The
ALJ also considered the objective medical evidence, as summarized above, which demonstrated
that Claimant did not have any limitations greater than those assessed by the ALJ. (Tr. at 16-18.)
The ALJ properly considered the opinion evidence of record, as well. (Id.) The ALJ further noted
that Claimant did not any side effects from his medication and that the medication effectively
controlled his symptoms. (Tr. at 17.) Finally, the ALJ acknowledged that Claimant was not
compliant entirely in taking his prescribed medication. (Id.)
25

In view of the foregoing, the Court finds that the ALJ properly considered Claimant’s
symptoms and credibility pursuant to the appropriate Rules and Regulations, and that Claimant’s
argument that he should have applied the mutually supportive test is without merit. Accordingly,
the Court finds that the ALJ’s pain and credibility assessment is supported by the substantial
evidence of record.
After a careful consideration of the evidence of record, the Court finds that the
Commissioner=s decision is supported by substantial evidence. Accordingly, by Judgment Order
entered this day, the Plaintiff=s Motion for Judgment on the Pleadings (Document No. 12.) is
DENIED, Defendant=s Motion for Judgment on the Pleadings (Document No. 13.) is GRANTED,
the final decision of the Commissioner is AFFIRMED, and this matter is DISMISSED from the
docket of this Court.
.

The Clerk of this Court is directed to send a copy of this Memorandum Opinion to counsel

of record.
ENTER: March 23, 2016.

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