McClure v. Colvin

Filing 13

MEMORANDUM OPINION denying Plaintiff's 11 Brief in Support of Judgment on the Pleadings; granting Defendant's 12 Brief in Support of Judgment on the Pleadings/Defendant's Decision; and dismissing this action from the docket of the Court. Signed by Magistrate Judge Cheryl A. Eifert on 5/11/2017. (cc: counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JOSEPH ANTHONY MCCLURE,
Plaintiff,
v.

Case No.: 3:16-cv-06707

NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration,1
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 supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-1383f. This case is presently before the Court on the parties’ motions for
judgment on the pleadings as articulated in their briefs. (ECF Nos. 11, 12). Both parties
have consented in writing to a decision by the United States Magistrate Judge. (ECF Nos.
5, 8). 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.

1 Pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil Procedure, the current Acting
Commissioner of the Social Security Administration, Nancy A. Berryhill, is substituted for former Acting
Commissioner Carolyn W. Colvin as Defendant in this action.

1

I.

Procedural History
Plaintiff Joseph Anthony McClure (“Claimant”) completed an application for SSI

on September 27, 2012, alleging a disability onset date of January 1, 2009,2 due to “bipolar
[and] manic depressive.” (Tr. at 27-28, 148, 166). The Social Security Administration
(“SSA”) denied Claimant’s application initially and upon reconsideration. (Tr. at 10, 81,
91). On September 20, 2013, Claimant filed a written request for an administrative
hearing, which was held on October 29, 2014 before the Honorable Sabrina M. Tilley,
Administrative Law Judge (“ALJ”). (Tr. at 24-56). By decision dated December 12, 2014,
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 May 26, 2016, when the
Appeals Council denied Claimant’s request for review. (Tr. at 1–3).
On July 27, 2016, 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 her Answer and a Transcript of the Proceedings on September 22,
2016. (ECF Nos. 9, 10). Thereafter, the parties filed their briefs in support of judgment on
the pleadings. Therefore, this matter is ripe for resolution.
II.

Claimant’s Background
Claimant was 31 years old at the time of his alleged onset of disability and 33 years

old at the time of the administrative hearings. (Tr. at 10). He has a GED and is able to
communicate in English. (Tr. at 165, 167). Claimant previously worked as a sales clerk,
cashier/stocker, driver, and laborer. (Tr. at 167).

2 At Claimant’s administrative hearing before the ALJ, he amended the alleged onset date to the protected
filing date of September 14, 2012. (Tr. at 27-28).

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III.

Summary of ALJ’s Findings
Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden

of proving disability, 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. § 416.920. The first step in the
sequence is determining whether a claimant is currently engaged in substantial gainful
employment. Id. § 416.920(b). If the claimant is not, then the second step requires a
determination of whether the claimant suffers from a severe impairment. Id. § 416.920(c).
If severe impairment is present, the third inquiry is whether this impairment meets or
equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative
Regulations No. 4. Id. § 416.920(d). If the impairment does, then the claimant is found
disabled and awarded benefits.
However, if the impairment does not, 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. § 416.920(e). After making this determination, the next step is to
ascertain whether the claimant’s impairments prevent the performance of past relevant
work. Id. § 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 burden
shifts to the Commissioner to establish, as the final step in the process, that the claimant
is able to perform other forms of substantial gainful activity, when considering the
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claimant’s remaining physical and mental capacities, age, education, and prior work
experiences. Id. § 416.920(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th
Cir. 1983). 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 SSA “must follow a special
technique at every level in the administrative review.” 20 C.F.R. § 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. § 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. § 416.920a(d)(1). Fourth, if the 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. § 416.920a(d)(2). Finally, if the SSA finds that the claimant has a
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severe mental impairment, which neither meets nor equals a listed mental disorder, the
SSA assesses the claimant’s residual function. 20 C.F.R. § 416.920a(d)(3).
In this case, the ALJ determined that Claimant satisfied the first inquiry because
he had not engaged in substantial gainful activity since September 14, 2012. (Tr. at 12,
Finding No. 1). Under the second inquiry, the ALJ found that Claimant suffered from the
severe impairments of mood disorder and anxiety disorder. (Tr. at 12-13, Finding No. 2).
The ALJ also considered Claimant’s history of polysubstance abuse, bipolar disorder, and
chronic back strain; however, she found that these impairments were non-severe. (Id.).
At the third inquiry, the ALJ concluded that Claimant’s impairments, either
individually or in combination, did not meet or equal the level of severity of any
impairment contained in the Listing. (Tr. at 14-15, Finding No. 3). Consequently, the ALJ
determined that Claimant possessed the RFC to:
[P]erform a full range of work at all exertional levels, but the following
nonexertional limitations: the claimant can understand, remember, and
carry out simple and complex tasks. He can respond appropriately to
occasional interaction with coworkers and supervisors. The claimant can
adjust to changes in a work routine in an environment free from teamwork,
over-the-shoulder supervision, interaction with the general public, and fastpaced production requirements.
(Tr. at 15-18, Finding No. 4). The ALJ found that the Claimant had no past relevant work.
(Tr. at 18-19, Finding No. 5). Accordingly, under the fifth and final inquiry, the ALJ
reviewed Claimant’s prior work experience, age, and education in combination with his
RFC to determine if he would be able to engage in substantial gainful activity. (Tr. at 1920, Finding Nos. 6-9). The ALJ considered that (1) Claimant was born in 1981 and was
defined as a younger individual on the date that the application was filed; (2) he had at
least a high school education and could communicate in English; and (3) transferability
of job skills was not an issue because the Claimant did not have past relevant work. (Tr.
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at 19, Finding Nos. 6-8). Given these factors, Claimant’s RFC, and the testimony of a
vocational expert, the ALJ determined that Claimant could perform jobs that existed in
significant numbers in the national economy. (Tr. at 19-20, Finding No. 9). At the medium
exertional level, Claimant could work as a janitor, cleaner, or stock clerk; at the light
exertional level, Claimant could work as a janitor, assembler, or price marker; and at the
sedentary exertional level, Claimant could work as a surveillance system monitor,
assembler, or electronic worker. (Id.). Therefore, the ALJ concluded that Claimant had
not been disabled as defined by the Social Security Act from September 14, 2012, through
the date of the ALJ’s decision. (Tr. at 20, Finding No. 10).
IV.

Claimant’s Challenges to the Commissioner’s Decision
Claimant raises three challenges to the Commissioner’s decision. First, he claims

that the ALJ erred at step two of the sequential process when she determined that
Claimant’s chronic back strain was a non-severe impairment. (ECF No. 11 at 4). Claimant
relies on the consultative examination performed by Dr. Kip Beard, who found that
Claimant had “some discomfort on bending forward with paravertebral tenderness.” He
argues that this objective finding, combined with Claimant’s subjective complaints of back
pain, merit a finding that his chronic back strain is severe. (Id. at 5).
Second, Claimant asserts that the ALJ failed to properly consider the opinion of
his treating psychiatrist, Marc Spelar, M.D. (Id. at 5-6). In particular, Claimant alleges
that the ALJ should have adopted Dr. Spelar’s opinion that Claimant would miss one to
two days of work each month due to his psychological impairments. The ALJ gave
significant weight to some of Dr. Spelar’s function-by-function assessments, but rejected
his opinion regarding missed workdays on the basis that the opinion was not supported
by any evidence or rationale. Claimant accuses the ALJ of cherry-picking from Dr. Spelar’s
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RFC assessment.
Finally, in a related challenge, Claimant posits that the ALJ failed to properly
consider the opinion of the vocational expert, who testified that Claimant would be
precluded from gainful employment if he missed one to two days of work each month.
Claimant contends that Dr. Spelar’s opinion was entitled to controlling weight and,
therefore, should have been accepted by the ALJ. Had the opinion been given the weight
it deserved, Claimant would have been found disabled based on the vocational expert’s
testimony.
In response, the Commissioner argues that the ALJ’s step two determination was
correct, because Claimant’s physical findings at Dr. Beard’s examination did not
demonstrate a severe back strain. (ECF No. 12 at 9-11). The Commissioner emphasizes
that, to the contrary, Claimant was able to walk, sit, stand, and squat without difficulty,
and his muscle strength and sensation were normal. While Dr. Beard noted some back
tenderness on bending, he also confirmed the absence of spasm and a preserved range of
motion.
With respect to Dr. Spelar’s opinion, the Commissioner noted that the ALJ was not
required to adopt the opinion in toto. (Id. at 11). In fact, the ALJ gave great weight to
much of Dr. Spelar’s RFC assessment, scrutinizing each aspect of it and reconciling any
discrepancies. The Commissioner adds that the ALJ properly declined to give controlling
weight to Dr. Spelar’s opinion on missed workdays because the opinion was not consistent
with other substantial evidence. In the Commissioner’s view, the ALJ provided good
reasons for rejecting that opinion and good reasons for adopting other portions of Dr.
Spelar’s RFC assessment. The Commissioner maintains that the reasons were supported
by substantial evidence. Accordingly, the ALJ fully complied with agency standards.
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The Commissioner further claims that the ALJ’s acted appropriately in
disregarding testimony by the vocational expert that was based upon Dr. Spelar’s
unsubstantiated opinion regarding Claimant’s potential to miss workdays. The
Commissioner indicates that this challenge is derivative of Claimant’s position regarding
Dr. Spelar, which has no merit. Consequently, this challenge is likewise unavailing.
V.

Relevant Medical Records
The Court has reviewed the transcript of proceedings in its entirety including the

medical records in evidence, but has confined its summary of Claimant’s treatment
records and evaluations to those entries most relevant to the issues in dispute.
A. Treatment Records
On February 29, 2012, Claimant presented to Prestera Centers for Mental Health
(“Prestera”), with complaints of depression and anxiety as evidenced by his blunted
expression, minimal eye contact, and lack of motivation. (Tr. at 253-56). Claimant also
reported problems sleeping. Claimant had been examined by Dr. Kazi, a psychiatrist at
Prestera, the week prior; however, he had refused medication recommended by Dr. Kazi
on the basis that medication had never helped him in the past. Claimant told the licensed
psychologist, Madeline Arrell, M.A., that he had lost his driver’s license three years earlier
due to legal issues. He tried to find work within walking distance to his residence, but was
not successful. Therefore, he lived at home with his mother and isolated himself from
others. Claimant reported being easily agitated, going for days without sleep and rarely
leaving his home. Claimant had no history of psychiatric hospitalization, substance abuse
counseling, or intensive outpatient counseling, but he had sought occasional counseling
from Prestera in the past.
On examination, Claimant exhibited social isolation, blocked speech, deficient
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coping skills, and a blunted affect. (Tr. at 274-80). His thought content was within normal
limits; he was oriented in all spheres; and his recall memory was within normal limits.
Claimant was diagnosed with mood disorder, not otherwise specified (“NOS”), and
polysubstance dependency, episodic. He received a Global Assessment of Functioning
(“GAF”) score of 60.3 Claimant agreed to participate in talk therapy and possibly
reconsider his refusal to take medication.
At his therapy session on March 14, 2012, Claimant told Ms. Arrell he had been
involved in a car accident in 2001 and sustained a back injury. (Tr. at 257). This “messed
up” his back resulting in an inability to lift anything; in addition, he became nervous when
he rode in a car with anyone. Claimant also reported that he was “very functional” until
three years ago when he experienced an anxiety attack while at work that resulted in him
being sent home. The business closed a few months later, so Claimant was out of work.
Claimant spoke about applying for disability; however, he was not motivated enough to
obtain information necessary to complete the paperwork.
Claimant attended therapy at Prestera six more times in 2012: March 28, June 6,
June 20, October 10, October 24, and December 5. (Tr. at 258-63). He also canceled, or
had canceled, ten additional appointments. (Tr.at 283-92). Claimant regularly expressed
anger and depression at his therapy sessions. On March 28, Claimant was angry with his

3 The Global Assessment of Functioning (“GAF”) Scale is a 100-point scale that rates “psychological, social,
and occupational functioning on a hypothetical continuum of mental health-illness,” but “do[es] not include
impairment in functioning due to physical (or environmental) limitations.” Diagnostic Statistical Manual
of Mental Disorders (“DSM”), Americ. Psych. Assoc, 32 (4th Ed. 2002) (“DSM-IV”). In the past, this tool
was regularly used by mental health professionals; however, in the DSM-5, the GAF scale was abandoned,
in part due to its “conceptual lack of clarity” and its “questionable psychometrics in routine practice.” DSM5 at p. 16. Americ. Psych. Assoc, 32 (5th Ed. 2013). GAF scores between 51 and 60 indicate “[m]oderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” DSM-IV
at 32.

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girlfriend when he learned that she had miscarried their baby and never told him. He was
also frustrated about not being able to get a job. On June 6, Claimant told Ms. Arrell that
his mother had to complete his disability application for him, because he was not
motivated to finish it. (Tr. at 259). Claimant described his day as waking, showering, and
then either going back to bed or sitting and listening sat to music. He did not want to be
around people and did not like television. He blamed his depression on living in West
Virginia, stating that people were friendlier in Florida. The topic of medication was raised;
however, Claimant continued to refuse it as he did not like to feel “knocked out” all the
time.
On June 20, Claimant appeared to be depressed with symptoms of anhedonia and
lack of motivation. (Tr. at 260). Claimant told Ms. Arrell that he wanted to find work, but
was in constant pain due to past accidents. Claimant continued to refuse medication,
stating marijuana would help him function better. By October 10, Claimant reported he
had been denied disability and had retained an attorney who suggested Claimant begin
taking medication; however, Claimant was not willing to do so. (Tr. at 261). Claimant
discussed his distrust of medication, his self-imposed isolation, and his lack of sleep.
Claimant was fully oriented, demonstrating normal thought content; however, he
appeared socially isolated, spoke rapidly, lacked sufficient coping skills, and presented a
flat affect. Claimant was assessed with mood disorder, NOS, and was given a GAF score
of 55. (Tr. at 264-70).
On October 24, Claimant reported racing thoughts, lack of sleep, and frustration
with people. (Tr. at 262). Claimant still refused to take medications, because they made
him feel emotionless. Claimant advised that he had recently learned that he might have a
four-year-old son, and he was happy about the news, but was also nervous. Accordingly,
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he got drunk. By his session on December 5, Claimant recognized that he was not
improving and stated that he was tired, on edge, irritable, and continued to bite his
fingernails to the quick. (Tr. at 263). Claimant discussed his preference for using pot and
alcohol instead of psychotropic medication to control his symptoms. Claimant did note
that his therapy sessions helped him and “worked better than any medication I ever took.”
(Id.).
Claimant presented for therapy at Prestera in 2013, beginning on January 2 and
continuing therapy that year for another seventeen sessions. (Tr. at 235-247, 297-305).
On January 2, 2013, Claimant discussed his stress level and lack of sleep. (Tr. at 235).
Claimant was living with a friend instead of his mother. He admitted that his mother gave
him Xanax pills, and they calmed his anxiety around other people. Claimant was not
smoking marijuana anymore and felt his memory was improving. Claimant and Ms. Arrell
discussed Claimant’s refusal to take psychotropic medication and Ms. Arrell’s belief that
Claimant would function better with the right treatment. Claimant agreed to see Dr. Kazi
again.
On January 16, 2013, Claimant told Ms. Arrell that he had not done much of
anything since their session two weeks earlier. (Tr. at 236). He was depressed and had a
“cloudy” sensorium. Claimant answered the questions put to him and was cooperative,
but he was not initiating any of the discussion and had nothing in particular to say. Ms.
Arrell ended the session early, as Claimant was simply sitting with his head on the table
and yawning.
Claimant saw Dr. Kazi on January 30, 2013. (Tr. at 244-47). At that visit, Claimant
appeared unkempt with agitated motor activity and guarded attitude. His eye contact and
speech were within normal limits. Claimant’s affect was labile; his thought process was
11

goal directed with appropriate thought content, and he appeared alert, although Dr. Kazi
noted that Claimant appeared dismissive as he continued to check his cell phone for
messages throughout the examination. Claimant told Dr. Kazi he wanted medication to
control his anger and irritability. In addition, Claimant complained of anxiety, excessive
worry, and sleep issues. Claimant told Dr. Kazi he remained sober; however, his mother
gave him Xanax periodically. Claimant was assessed with episodic mood disorder, NOS,
and polysubstance dependency, episodic. Claimant continued to maintain a GAF score of
60. Dr. Kazi prescribed Tegretol, and Claimant agreed to start the medication. Claimant
also saw Ms. Arrell that day, but they had a shortened session in anticipation of Claimant’s
visit with Dr. Kazi.
Claimant returned to Dr. Kazi on February 13, 2013. (Tr. at 248-51). Claimant
appeared agitated with a labile affect and guarded attitude, although his speech was
normal, his thought process was goal directed, and his thought content was appropriate.
Claimant’s assessment and GAF score remained the same. Dr. Kazi prescribed Tegretol,
Lamictal, and BuSpar.
Claimant presented for therapy with Ms. Arrell on March 27, 2013. Claimant told
Ms. Arrell he had stopped taking the medication prescribed for him by Dr. Kazi, as “they
ain’t working.” (Tr. at 238). Claimant appeared depressed with a constricted affect. Ms.
Arrell described Claimant as resistant to any attempt to change or redirect his emotion,
thought processes, or behaviors, as evidenced by taking his medication for only one
month before quitting. Claimant complained of being “on edge” while waiting for a
reconsideration decision from the SSA, stating that if he was awarded benefits, he would
“be out of here.” (Id.).
At his next session on April 10, Claimant presented with a euthymic mood and
12

broad affect. (Tr. at 239). He was not taking prescribed medication, but remarked that he
“feels better now.” (Id.). He met a new girl, who was living at the residence where he was
living, and he liked her. Claimant spoke about his disability claim, acknowledging that
waiting for a decision was stressful. He stated that he had not been able to look for work
“on advice of his lawyer.” Ms. Arrell predicted that if Claimant was denied disability
benefits, his mood and level of agitation might change drastically.
Claimant returned to Prestera on May 2, 2013, complaining of an increase in
symptoms related to his living situation, issues with his new girlfriend, and the denial of
his Social Security disability claim. (Tr. at 240). Claimant appeared agitated with a
constricted affect. He spoke about anger issues and agreed to restart medication to control
his symptoms. When he presented for follow up on May 22, Claimant reported that Dr.
Kazi had prescribed Lamictal, which Claimant was taking at double the regular dosage
per Dr. Kazi’s recommendation. Claimant complained that he felt “all over the place” with
his emotions going from one extreme to the next. (Tr. at 241). He also reported having
numerous arguments with his girlfriend and getting little sleep. Nevertheless, Claimant
appeared more alert at this session, though more prone to agitation, with a dysphoric
affect. Claimant agreed to continue his medication for another week to see if it would
alleviate his symptoms.
Claimant returned on June 19, reporting to Ms. Arrell that he had left home for a
few days and while gone, took “hard core stuff, cocaine, weed and alcohol.” (Tr. at 242).
Claimant also talked about trying to cut his wrists and said that his mother had given him
three Xanax a day for the past three days to calm him. Ms. Arrell suggested that Claimant
get crisis treatment, but he refused, likening Prestera’s crisis unit to jail. He likewise
resisted Ms. Arrell’s suggestion that he look for work, stating “I don’t trust myself out;
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someone would make me mad.” (Id.). Claimant had stopped taking Lamictal and told Ms.
Arrell he was not interested in trying other medication.
Throughout his sessions with Ms. Arrell in July, August, September, and October,
Claimant continued to complain of sleep and anger issues, relationship problems with his
girlfriend, depression, and anxiety. (Tr. at 243, 297-303). On October 23, 2013, Claimant
presented to Dr. Kazi again complaining of anxiety and sleep issues. (Tr. at 348-51). Dr.
Kazi noted Claimant was not taking the prescribed medication. Claimant appeared
agitated with a labile mood and guarded attitude. His speech was normal, his thought
process was goal oriented, and his thought content was appropriate. Claimant’s
assessment and GAF score remained unchanged. Dr. Kazi prescribed Remeron, which
Claimant agreed to try. Claimant also saw Ms. Arrell on October 23, 2013. (Tr. at 303).
He reported sleeping disturbances, irritability, agitation, and anger directed toward other
people. Claimant complained about his prior problems with work, and Ms. Arrell
suggested that he contact the West Virginia Department of Rehabilitation for assistance.
Claimant returned to Ms. Arrell on November 6, 2013 with complaints of lack of
sleep and depression. (Tr. at 304). Claimant reported that he had no motivation, was
worried about his ongoing disability case, and was currently not taking the medication
prescribed for him. Claimant complained about having no money and about living in his
mother’s home with a cousin who did nothing but eat and watch television. Claimant
appeared depressed and anxious with a relaxed, broad mood. Ms. Arrell suggested
Claimant obtain a punching bag to help him exercise and relieve tension.
On December 5, 2013, Claimant returned for therapy with Ms. Arrell. (Tr. at 305).
Claimant reported his “nerves were shot” and he had been biting his fingernails down to
the quick. Claimant appeared anxious with a broad affect. He reported that he and his ex14

girlfriend had started seeing each other again and he was not sure how he felt about their
relationship. He continued to worry about his disability claim and resisted any change in
thoughts to redirect him from his emotions about the claim.
Claimant participated in therapy at Prestera with Ms. Arrell in 2014; attending
sixteen sessions in addition to being examined throughout the course of that year by Marc
Spelar, M.D. (Tr. at 306-26, 338-47, 352-55, 356-59, 360-64). On January 15, 2014,
Claimant told Ms. Arrell that he felt stressed due to family issues. (Tr. at 306). Claimant
reported that he was working at a fast food restaurant one day a week but relayed that
having to get dressed and go to work made him feel “physically sick” and he “scream[ed]
really loud” on his way home because he knew he had to “go back the next day.” (Id.).
Claimant complained that he hated “stupid” people and resented someone younger than
him telling him when he could take a smoking break. Claimant’s mood was depressed; his
affect was broad. Claimant indicated that he was attempting to schedule an appointment
with the physician at Prestera in order to obtain medication for his “nerves.”
Claimant continued to feel anxious and depressed at his sessions in January and
February, although he remained employed, working 12-14 hours per week. (Tr. at 30708). Claimant expressed his distaste at having to deal with other people, indicating that
he grew impatient with people who “just want to talk” when he did not “want to listen to
them.” (Tr. at 307). He had developed a new hobby of playing internet chess and mahjong
and felt that these games helped him to relax. Claimant also discussed his stress over his
relationship with his girlfriend, whom he described as being “very moody.” (Tr. at 308).
On February 11, 2014, Claimant saw Dr. Marc Spelar, requesting help for control
of his mood swings, anxiety and irritability. (Tr. at 352-55). Claimant presented with an
appropriate affect, normal eye contact, and motor activity. His thought process was goal
15

directed and logical. Claimant demonstrated appropriate thought content and appeared
alert. Claimant continued to maintain a GAF score of 60. Dr. Spelar recommended
Claimant continue taking Remeron and begin taking BuSpar; however, he declined to
refill Claimant’s prescription for Valium.
On March 12, Claimant reported to Ms. Arrell that he was terminated from his
employment as he had trouble reading the schedule and had missed his shift twice;
however, he took consolation in the thought that he did not “like that job anyway.” (Tr. at
309). Claimant admitted during the course of his session that he was procrastinating
looking for another job, because the weather was nice and he currently had some money.
At this time, Claimant appeared more relaxed, less depressed, and had a broad affect. On
April 9, 2014, Claimant advised Ms. Arrell that he was having more trouble with his
girlfriend and was stressed that his lawyer had not returned six telephone calls that
Claimant placed to him in the past two weeks. (Tr. at 310).
Claimant presented to Dr. Spelar on April 22, 2014. (Tr. at 356-59). Claimant told
Dr. Spelar he missed the prior week’s dose of BuSpar but was continuing to take Valium
as it helped relieve his anxiety. During the examination, Claimant appeared cooperative,
with normal speech and motor activity. His mood was “ok” and his affect appropriate.
Claimant was alert, demonstrating logical, goal directed thoughts. Dr. Spelar observed
that Claimant’s gait was within normal limits. Neither Claimant’s assessment, nor his
GAF score changed from his prior examination. Dr. Spelar prescribed a course of Valium,
advising Claimant he could refill the present dose upon request as appropriate. In
addition, Dr. Spelar advised Claimant to begin taking BuSpar.
Throughout his therapy sessions in April, May, and June 2014, Claimant
complained of feeling depressed, anxious, and angry. (Tr. at 310-17). Claimant reported
16

at his April 22 session that he had stopped taking BuSpar because it did not relieve his
symptoms. (Tr. at 311). Claimant stated that he was very angry with his mother and
cousin. According to Claimant, his cousin lived with Claimant and his mother and ate all
the food in the house. The cousin weighed 400 pounds, had Crohn’s Disease, and did not
care properly for himself. Claimant described his mother as an enabler, indicating that
she tended to the cousin’s every need, even though he was capable of doing some things
for himself. Claimant also advised that he and his girlfriend fought constantly, and he
wanted her to move out of the residence, but had not taken steps to accomplish this.
On May 7, Claimant told Ms. Arrell that he had “put out” his girlfriend a week
earlier, went to a bar to celebrate his freedom, and consumed twelve beers. (Tr. at 313).
Claimant admitted to taking two Valium before the counseling session, which gave him a
“chilled out mood.” Claimant discussed feeling anxious over his disability application,
stating that he was waiting for a hearing on the application to be scheduled. He had finally
heard from his lawyer, who thought it would be another few months before he would know
when the hearing would take place. In the meantime, Claimant planned to look for a parttime job. He returned to Ms. Arrell for therapy on May 21, June 4, and June 18. Each time,
Claimant advised that he was staying away from people, had sleep issues, and was worried
about his disability claim. (Tr. at 314-17).
When Claimant appeared on July 2 for therapy with Ms. Arrell, he reported sleep
issues and a desire to stay away from other people, comparing himself to a “hibernating
bear.” (Tr. at 318). Claimant was taking BuSpar, but had missed one week, and Valium,
which he took every other day. Claimant exercised by mowing the lawn every 5-6 days.
Claimant appeared depressed with a constricted, blunted affect. Ms. Arrell noted that
Claimant’s current medications had shown some efficacy, although monitoring was
17

required as he was non-compliant with the medication protocol. (Tr. at 341). Claimant
demonstrated social isolation, deficient coping skills, and thought blocking; however, his
speech, appearance, and recall memory were normal. (Tr. at 343-44). Claimant was
assessed with mood disorder, NOS, with a GAF score of 55.
One week later, on July 9, Claimant was examined by Dr. Spelar. (Tr. at 360-64).
Claimant admitted to Dr. Spelar that he was not taking BuSpar as prescribed, because he
did not want to use any medication that had to be taken on a regular or daily basis, and
he did not feel it relieved his symptoms. Claimant did take Valium, but noted that
marijuana worked better at controlling his anxiety. While he did have some
symptomology that bordered on panic disorder or panic attack, Dr. Spelar did not believe
Claimant met the criteria for either diagnosis. On examination, Claimant was alert,
cooperative, and pleasant with normal speech, appropriate affect, logical and goal
directed thought process, as well as appropriate thought content. Claimant was assessed
with episodic mood disorder, NOS, and combination drug dependency, episodic. Dr.
Spelar noted Claimant had a history of cocaine, marijuana, and alcohol abuse, reported
by Claimant to be in full, sustained remission as to the drugs and early partial remission
as to alcohol. His GAF score was 60. Dr. Spelar decided to discontinue BuSpar and start
Claimant on Inderal for anxiety. (Tr. at 363).
Claimant returned for therapy with Ms. Arrell on July 30, 2014, stating that he was
having a “pretty good day.” (Tr. at 319). Claimant advised that he was taking Valium and
Inderal, although not on the same day, and had stopped taking BuSpar, because he did
not want to maintain a strict schedule. Claimant’s mood was euthymic and his affect was
congruent. Ms. Arrell remarked she had never seen Claimant this rested or relaxed.
On August 27, Claimant presented for therapy with Ms. Arrell. He continued to
18

take the prescribed medication, but admitted taking more Valium in a day than the
recommended dose. (Tr. at 320). Claimant described feelings of agitation and depression,
and reported having family conflict. He stated that he had experienced a “borderline panic
attack” in Walmart recently, because “there was so much going on there.” (Id.). Claimant
told Ms. Arrell he was still angry with his mother and cousin and would not do tasks that
his mom asked him to do, such as mowing the lawn, because he did not like taking
direction from anyone. His mood at this session was depressed and agitated, and his affect
was somewhat constricted.
Claimant continued his therapy sessions in September and October 2014. On
September 10, Claimant’s mood was stable with a broad affect. (Tr. at 322). He reported
going to the beach with a friend, but had to “triple his medication” and sleep in order to
tolerate the drive. He continued to avoid going out in public and to avoid people. Claimant
had a disability hearing scheduled and found himself dwelling on the upcoming hearing.
Ms. Arrell discussed Claimant’s diagnosis with him. She confirmed with Claimant that he
was not diagnosed with bipolar disorder.
At his September 24 session, Claimant reported having gone out for an evening,
gotten drunk, and spent the night at a female friend’s apartment. He awoke with the
friend’s ex-boyfriend punching him in the face. Claimant’s orbital socket was fractured,
and he had injuries to his face. (Tr. at 324). Claimant received pain medication at the
hospital and was taking that in place of his psychotropic medication. During the session,
Claimant expressed anger at the man who beat him and distrust of the legal system.
Claimant had gone to court on charges filed against the man, but the man did not show
up for the hearing. On October 8, Claimant stated that he was still recuperating from the
attack. (Tr. at 326). He expressed some concern over the way his wounds were healing.
19

Claimant also reported that he was “super freaking out” over his disability hearing, which
was to be held in three weeks. He admitted that he did not know what he would do if the
decision did not go in his favor.
B. Consultative Examinations and Opinion Evidence
On March 11, 2013, Elizabeth A. Bodkin, M.A., completed a mental status
examination and clinical interview at the request of the Disability Determination Service.
(Tr. at 225-28). Ms. Bodkin observed that Claimant had normal gait and posture and did
not require the use of any device to ambulate. He was cooperative with a good attitude.
Claimant reported that he lived with his mother and had no income. He stated that he had
applied for disability benefits because he “was not functioning in society. I get so tensed
up around people. If somebody looks, I fester inside and I’m super on edge and super
jumpy.” (Tr. at 225). Claimant indicated that his symptoms started years earlier. (Tr. at
226). He described difficulty sleeping and an anxious mood; however, Ms. Bodkin found
no evidence of phobias, panic attacks, obsessions, compulsions, or posttraumatic stress
symptoms. Claimant treated with Prestera every other week and took BuSpar. He had a
history of one admission to Prestera’s crisis unit, which had occurred approximately three
years prior and lasted for one week. Claimant denied current use of illegal drugs, although
he admitted to a history of daily cocaine use for a period of two years, with the last use
being one year ago. Claimant had also tried other recreational substances in the past and
had abused Xanax. With respect to school and work history, Claimant stated that he
completed the 11th grade, but dropped out of school at age 15 because he “wasn’t learning
anything.” (Tr. at 226). He last worked for a delivery service and as a cashier, but had not
worked for three years. Claimant admitted to four arrests for charges including drug
paraphernalia, assault, and destruction of property.
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On examination, Claimant made good eye contact, interacted appropriately, and
provided adequate verbal responses. He was fully oriented, but had a dysphoric mood and
restricted affect. His thought processes, thought content, and speech were normal.
Claimant showed fair insight, and his judgment was within normal limits. His immediate,
recent and remote memory was within normal limits. Ms. Bodkin found Claimant’s
concentration and persistence mildly deficient; however, his psychomotor behavior was
within normal limits, as was his pace. Ms. Bodkin diagnosed Claimant with bipolar
disorder, NOS, and anxiety disorder, NOS. She explained that the diagnosis of bipolar
disorder was based upon Claimant’s report of symptoms and his treatment at Prestera.
The diagnosis of anxiety disorder was based upon Claimant’s report of frequent anxiety
and worry. Ms. Bodkin felt that Claimant’s prognosis was fair, and he currently had the
ability to manage his own finances.
Kip Beard, M.D., performed a consultative internal medicine examination at the
request of the Disability Determination Service on March 19, 2013. (Tr. 220-23).
Claimant’s chief complaint was a back injury secondary to a motor vehicle accident in
2001. Claimant described constant mid to lower back pain that was dull to sharp, became
sharper with activity, and averaged an eight on a ten-point pain scale. He indicated that
lifting, bending, or standing repetitively exacerbated the pain, and he had days when he
“cannot move out of the bed.” Claimant also mentioned he could play basketball for about
twenty minutes before his back would begin to hurt. As for treatment, Claimant reported
participating in physical therapy and taking pain medication in 2001. However, Claimant
did not have health insurance and was not receiving any treatment at the time of the
examination. Claimant also advised Dr. Beard that he had bipolar disorder and took
BuSpar.
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Claimant’s review of systems was essentially negative except for back pain. (Tr. at
221). He denied any neurological, respiratory, cardiovascular, and gastrointestinal
symptoms. Dr. Beard did not have treatment records to review prior to examining
Claimant.
On examination, Claimant could walk normally without any assistive devices. He
could stand unassisted, rise from a seated position, and step up and down from the table
without issue. He appeared comfortable both in the seated and supine positions.
Claimant’s head, neck, throat, eyes, ears, chest, cardiovascular system, abdomen, and
extremities were all normal. (Tr. at 222). An examination of the cervical spine revealed
no spinous process or muscular tenderness, and no evidence of paravertebral muscular
spasm. Range of motion of the cervical spine was without limitations. Claimant’s arms,
shoulder, hands, elbows, wrists, knees, ankles, and feet were without tenderness, redness,
warmth, swelling, effusion, laxity, nodules, or crepitation. Range of motion of these limbs
and joints was normal. Claimant could pick up coins with both hands and write with the
dominant hand without difficulty. Examination of Claimant’s dorsolumbar spine revealed
a normal curvature and normal range of motion; however, Claimant complained of mild
discomfort with forward bending with some paravertebral tenderness, although no spasm
was noted. Claimant could stand on one leg without issue. His hips were pain free with
normal range of motion. A seated and supine straight leg raising test was asymptomatic
at 90 degrees on the right side, but Claimant had mild discomfort behind the knee on the
left side. However, he had no weakness, atrophy, or sensory loss indicative of
radiculopathy. The remainder of Claimant’s neurological examination was likewise
unremarkable. Deep tendon reflexes of the biceps measured 2+, of the triceps 1+, of the
patellae 2+, and of the Achilles 1+. Claimant could heel-walk, toe-walk, tandem walk and
22

squat. Dr. Beard assessed Claimant with chronic thoracolumbar strain.
On April 15, 2013, Ann Logan, Ph.D., completed a Psychiatric Review Technique,
finding Claimant had medically determinable impairments of affective disorder (Listing
12.04) and anxiety disorder (Listing 12.06); however, the combination of impairments
was not severe and did not precisely satisfy the diagnostic criteria. (Tr. at 69-70). Dr.
Logan found Claimant mildly limited in his restriction of activities of daily living,
maintaining social function, concentration, persistence and pace; he had no episodes of
decompensation and no evidence to establish the presence of the “C” criteria. Dr. Logan
determined that Claimant was partially credible as she found his allegations were not fully
supported by the medical records. On August 2, 2013, Karl G. Hursey, Ph.D., opined on
reconsideration that Claimant’s mental impairments were not alleged to have worsened
nor were there any new allegations of mental impairments. (Tr. at 77-78). In addition,
Claimant’s activities of daily living had not changed, and there were no new medical
records for review. Dr. Hursey evaluated the available evidence and confirmed Dr.
Logan’s assessment as written.
On April 11, 2013, Fulvio Franyutti, M.D., completed a Physical Residual
Functional Capacity Assessment. (Tr. at 70-71). Dr. Franyutti opined that Claimant did
not have any exertional limitations in lifting, carrying, walking, standing, sitting, pushing
or pulling or any non-exertional limitations including postural, manipulative, visual,
communicative, or environmental. Claimant was found to have a physically non-severe
RFC. On August 5, 2013, A. Rafael Gomez, M.D., completed an RFC with findings
identical to those of Dr. Franyutti. (Tr. at 79).
On October 27, 2014, Marc Spelar, M.D., completed an Ability to do Work-Related
Activities (Mental) form. (Tr. at 293-96). At that time, Claimant’s diagnoses were mood
23

disorder, NOS, and anxiety disorder, NOS. His current GAF score was 60, which was also
his highest score during the past year. Claimant’s medication regimen included Valium,
Topamax, and Inderal. Dr. Spelar opined that Claimant’s mental impairment and
symptoms were moderate, and his prognosis was fair with adherence to treatment. On a
function-by-function basis, Dr. Spelar opined that Claimant had no limitations in
understanding, remembering, and carrying out simple instructions and making
judgments on simple work related decisions; he had mild limitations with understanding,
remembering, and carrying out complex instructions and responding appropriately to
usual work situations and changes in a routine work setting. (Tr. at 294). Claimant had
moderate limitations in interacting appropriately with the public, supervisors and coworkers. As for Claimant’s signs and symptoms, Dr. Spelar noted that Claimant had no
signs or symptoms of: loss of interest in most activities, appetite disturbance, thoughts of
suicide, inappropriate affect, poverty of speech content, persistent generalized anxiety,
recurrent and intrusive recollection of traumatic events, pathological dependence,
pathological passivity or aggressiveness, paranoid thinking, recurrent obsessions or
compulsions causing marked distress, seclusiveness, incoherence, isolation, bipolar
syndrome, disorientation to time and place, thinking disturbances, hallucinations,
delusions, hyperactivity, catatonia, emotional inability, flight of ideas, mania, inflated
self-esteem, unrealistic interpretation of physical signs and sensations, loose
associations, pathological suspiciousness or hostility, oddities of thought, oddities of
perception and speech, oddities of behavior, or a decreased need for sleep. (Tr. at 29495). He had mild signs and symptoms of decreased energy, feelings of guilt or
worthlessness, impairment of impulse control, psychomotor agitation or retardation,
persistent disturbances of mood or affect, apprehensive expectation, emotional
24

withdrawal or isolation, persistent irrational fear of a specific object, activity or situation,
intense and unstable interpersonal relationships, motor tension, deeply ingrained,
maladaptive patterns of behavior, easily distracted, memory impairment, sleep
disturbance, and panic attacks. He had moderate signs and symptoms of mood
disturbance and difficulty thinking or concentrating. Dr. Spelar also opined that, on
average, Claimant’s impairments would cause him to be absent from work one to two days
per month. (Tr. at 295).
VI.

Standard of Review
The issue before the Court is whether the final decision of the Commissioner is

based upon an appropriate application of the law and is supported by substantial
evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In Blalock v.
Richardson, the United States Court of Appeals for the Fourth Circuit defined “substantial
evidence” to be:
[E]vidence 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)).
This Court is not charged with conducting a de novo review of the evidence. Instead, the
Court’s function is to scrutinize the record and determine whether it is adequate to
support the conclusion of the Commissioner. Hays, 907 F.2d at 1456. When conducting
this review, the Court does not re-weigh evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 2001) (citing Hays, 907 F.2d at 1456)). Moreover, “[t]he fact that the record as
a whole might support an inconsistent conclusion is immaterial, for the language of §
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205(g) ... requires that the court 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). Thus, the relevant question for the Court is
“not whether the claimant is disabled, but whether the ALJ’s finding of no disability is
supported by substantial evidence.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005) (citing Craig, 76 F.3d at 589).
VII.

Discussion
Claimant challenges the ALJ’s step two determination and lodges two related

criticisms arising from the weight given by the ALJ to Dr. Spelar’s RFC assessment. The
Court will address the first challenge separately and will discuss the related challenges
together.
A. ALJ’s Step Two Determination
At the second step of the disability determination process, the ALJ found that
Claimant had severe impairments of “mood disorder and anxiety disorder.” (Tr. at 12).
The ALJ also considered Claimant’s history of polysubstance abuse, bipolar disorder, and
chronic back strain, but did not find any of these conditions to be severe. (Tr. at 12-13).
With respect to Claimant’s chronic back strain, the ALJ reviewed in detail the
examination findings of Dr. Kip Beard and ultimately concluded that “the claimant’s back
strain is a non-severe impairment because the claimant has not received treatment for it
for many years according to his own report, and Dr. Beard’s examination showed minimal
evidence of impairment.” (Tr. at 13). Claimant argues that the ALJ “failed to properly
consider the opinion of Kip Beard” and ignored Claimant’s subjective complaints of severe
back pain.

26

Title 20 C.F.R. §416.920 explains the five-step process followed by an ALJ when
evaluating an application for SSI. At the second step of the process, the ALJ must
determine whether the claimant has an impairment or combination of impairments that
is severe. Id. at §416.920(a)(4)(ii). “An impairment or combination of impairments is not
severe if it does not significantly limit [a claimant’s] physical or mental ability to do basic
work activities.” Id. at § 416.922. Basic work activities are “the abilities and aptitudes
necessary to do most jobs.” Id. Examples of basic work activities include:
(1) Physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work
situations; and
(6) Dealing with changes in a routine work setting.
Id. The claimant bears the burden of proving that an impairment is severe, Grant v.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983), and does this by producing medical evidence
establishing the condition and its effect on the claimant’s ability to work. Williamson v.
Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003). The mere presence of a condition or
ailment is not enough to demonstrate the existence of a severe impairment. Moreover, to
qualify as a potentially disabling impairment, the severe impairment must have lasted, or
be expected to last, for a continuous period of at least twelve months, 20 C.F.R. § 416.909,
and must not be controlled by treatment, such as medication. Gross v. Heckler, 785 F.2d
1163, 1166 (4th Cir. 1986).
In this case, substantial evidence supports the ALJ’s determination that Claimant’s
27

chronic back strain was not a severe impairment. The only medical evidence relevant to
Claimant’s back strain was the report prepared by consultative examiner, Dr. Kip Beard.
As the ALJ noted, at the examination, Claimant walked with a normal gait; required no
ambulatory aids; stood unassisted; rose from a seated position with ease; and could step
up and step down from Dr. Beard’s examination table without difficulty. (Tr. at 221).
Claimant was comfortable in both the sitting and supine positions, and he could heelwalk, toe-walk, and tandem walk. Although Claimant complained of some tenderness and
discomfort on forward bending, his spinal range of motion was normal and there was no
evidence of muscle spasm. Claimant could stand on one leg without difficulty; had no leg
length discrepancy, muscle weakness, or atrophy; his sensations were intact; his reflexes
were symmetric; and he complained of only mild, nonspecific discomfort behind the left
knee on bilateral straight leg raise. Claimant produced no medical evidence
demonstrating that his mild back discomfort actually limited his ability to do any basic
work activity. In addition to the unremarkable findings on examination, two nonexamining medical sources reviewed the file and found that Claimant had no severe
physical impairment. (Tr. at 70-71, 79). Finally, the ALJ reasonably took into account
that the underlying injury to Claimant’s back, which he claimed to be the source of his
chronic strain, occurred long before the alleged onset of disability and had not required
any medical care for many years.
Therefore, the Court finds that the ALJ did not err in her determination that
Claimant’s back strain was a non-severe impairment. Claimant bore the burden of
establishing the nature of the impairment and its limiting effect on his ability to work. He
simply failed to meet that burden.

28

B. Dr. Spelar’s Opinion
Claimant asserts two related challenges concerning the weight the ALJ gave to the
RFC assessment of Dr. Spelar, Claimant’s treating psychiatrist. Specifically, he contends
that the ALJ failed to properly weigh Dr. Spelar’s opinion that Claimant would miss one
to two workdays per month due to psychological symptoms or treatment. Claimant adds
that if the ALJ had properly weighed Dr. Spelar’s opinion, she would not have rejected the
testimony of the vocational expert, who confirmed that missing one to two days of work
per month would preclude Claimant from obtaining gainful employment. The Court finds
these challenges to be without merit.
For SSI claims filed before March 27, 2017, 20 C.F.R. § 416.927(c) outlines how
medical opinions will be weighed in determining whether a claimant qualifies for benefits.
In general, the SSA will give more weight to the opinion of an examining medical source
than to the opinion of a non-examining source. See 20 C.F.R. ' 416.927(c)(1). Even greater
weight will be allocated to the opinion of a treating physician, because that physician is
usually most able to provide Aa detailed, longitudinal picture@ of a claimant=s alleged
disability. Id. at ' 416.927(c)(2). Indeed, a treating physician’s opinion will be afforded
controlling weight if two conditions are met: “(1) the opinion is well-supported by clinical
and laboratory diagnostic techniques and (2) it is not inconsistent with other substantial
evidence.@ Ward v. Chater, 924 F. Supp. 53, 55 (W.D. Va. 1996); see also, 20 C.F.R. '
416.927(c)(2).
The opinion of a treating physician must be weighed against the record as a whole
when determining eligibility for benefits. Id. at ' 416.927(c)(2). If the ALJ determines that
a treating physician=s opinion should not be afforded controlling weight, the ALJ must
then analyze and weigh all the evidence of record, taking into account the factors listed in
29

' 416.927(c)(2)-(6). These factors include: (1) length of the treatment relationship and
frequency of evaluation, (2) nature and extent of the treatment relationship, (3)
supportability, (4) consistency, (5) specialization, and (6) various other factors. Id. “A
finding that a treating source’s medical opinion is not entitled to controlling weight does
not mean that the opinion is rejected. It may still be entitled to deference and be adopted
by the adjudicator.” Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *1 (Jul. 2,
1996). In order for a claimant to understand (1) why a treating source’s opinion was not
given controlling weight and (2) how the opinion was used by the Commissioner in
reaching his determination, the SSA, through the ALJ, “will always give good reasons in
our notice of determination or decision for the weight we give your treating source’s
opinion.” 20 C.F.R. ' 416.927(c)(2). In Social Security Ruling 96-2p, the SSA further
explains the ALJ’s obligation to explain the weight given to a treating source’s medical
opinion (i.e. on the nature and severity of an individual’s impairment), stating as follows:
When the determination or decision: is not fully favorable, e.g. is a denial …
the notice of 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.
Id. at *5.
Here, the ALJ thoroughly reviewed the records from Claimant’s counseling
sessions and psychiatric visits. (Tr. at 17-18). She then analyzed and discussed all of the
opinion evidence. (Tr. at 18). The ALJ gave no opinion controlling weight; thus, she
weighed each one as required by Social Security rules and regulations. Beginning with the
non-examining consultants, the ALJ noted that they found Claimant’s mental
impairments to be non-severe. The ALJ gave some weight to the opinions, but discounted

30

them to a degree, because the consultants did not have access to all of Claimant’s mental
health treatment notes and did not see the RFC assessment prepared by Dr. Spelar.
Looking next at Dr. Spelar’s RFC assessment, the ALJ discussed his function-byfunction findings and gave them significant weight, with the exception of his opinion that
Claimant would miss one to two days of work per month due to psychological impairment
or treatment. The ALJ explained that this particular opinion was given little weight,
because Dr. Spelar provided no rationale or supporting evidence to verify the existence of
such a limitation. The Court finds no error with the ALJ’s conclusion. Certainly, the ALJ
acted appropriately in assessing the supportability of Dr. Spelar’s function-by function
assessment and in rejecting any portion of the assessment that was not bolstered by the
record. Furthermore, as the Commissioner points out, an ALJ may give great weight to
an expert's opinion without incorporating every one of the expert’s findings and
limitations. See, e.g., Laing v. Colvin, No. SKG–12–2891, 2014 WL 671462, at *10 (D. Md.
Feb. 20, 2014) (“Although the ALJ accorded ‘great weight’ to the state agency
psychologists, he was not required to adopt every single opinion set forth in their
reports.”) (citing Bruette v. Comm'r Soc. Sec., No. SAG–12–1972, 2013 WL 2181192, at *4
(D. Md. May 17, 2013). The Claimant’s RFC is an administrative finding based upon the
entire record, not an isolated medical opinion. See Felton-Miller v. Astrue, 459 F. App'x
226, 230–31 (4th Cir. 2011) (recognizing that RFC “is an administrative assessment made
by the Commissioner based on all the relevant evidence in the case record, not a medical
opinion); See, also, SSR 96-8P, 1996 WL 374184, at *2 (S.S.A. July 2, 1996) (“RFC is an
administrative assessment of the extent to which an individual's medically determinable
impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work-related
31

physical and mental activities.”). In this case, the ALJ conducted a comprehensive
analysis of the record and, based on the evidence as a whole, crafted Claimant’s RFC
finding. Therefore, the ALJ complied with the applicable rules and regulations in
determining Claimant’s RFC.
In addition, the ALJ provided good reasons for rejecting Dr. Spelar’s opinion
regarding missed workdays. Dr. Spelar’s opinion was in the form of a checklist. (Tr. at
293-96). He did not add any written explanation for his findings, nor did he point to any
specific records as corroborative of his opinions. Furthermore, the reason for his belief
that Claimant would miss one to two workdays per month is not obvious from the rest of
his RFC assessment. To the contrary, a majority of the psychological signs and symptoms
contained on the checklist were assessed by Dr. Spelar as being mild or non-existent in
Claimant’s case. In addition, all of the work-related tasks that were moderately limited by
Claimant’s mental impairments involved interactions with other people. The ALJ clearly
accounted for that problem by limiting Claimant to work “in an environment free from
teamwork, over-the-shoulder supervision, [and] interaction with the general public.” (Tr.
at 16). Consequently, the ALJ’s explanation for rejecting Dr. Spelar’s opinion regarding
missed workdays was both clear and reasonable.
Given that substantial evidence supports the ALJ’s rejection of Dr. Spelar’s opinion
regarding missed workdays, the ALJ did not err in disregarding the vocational expert’s
testimony based on a hypothetical question that incorporated the opinion. In order for a
vocational expert's testimony to be relevant, it must be in response to a proper
hypothetical question that sets forth the claimant's impairments. English v. Shalala, 10
F.3d 1080, 1085 (4th Cir. 1993); Walker v. Bowen, 889 F.2d 47, 50-51 (4th Cir. 1989). To
frame a proper hypothetical question, the ALJ must first translate the claimant’s physical
32

and mental impairments into a RFC that is supported by the evidence; one which
adequately reflects the limitations imposed by the claimant’s impairments. Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006). “[I]t is the claimant's functional capacity,
not his clinical impairments, that the ALJ must relate to the vocational expert.” Fisher v.
Barnhart, 181 F. App’x 359, 364 (4th Cir. 2006). A hypothetical question will be
“unimpeachable if it adequately reflects a residual functional capacity for which the ALJ
had sufficient evidence.” Id. (citing Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir.
2005)) (internal quotation marks omitted); see also Russell v. Barnhart, 58 F. App’x 25,
30 (4th Cir. 2003) (noting that hypothetical question “need only reflect those
impairments supported by the record”). “The Commissioner can show that the claimant
is not disabled only if the vocational expert's testimony that jobs exist in the
national economy is in response to questions from the ALJ that accurately reflect the
claimant's work-related abilities.” Morgan v. Barnhart, 142 F. App’x 716, 720-21 (4th Cir.
2005).
When the ALJ provided the vocational expert with a hypothetical question that
fully and accurately reflected Claimant’s RFC finding, the vocational expert testified that
Claimant could not do any of his past work, but could perform other jobs that existed in
significant numbers in the economy. (Tr. at 53-54). The vocational expert confirmed that
her opinions were consistent with the Dictionary of Occupational Titles. Thus, the ALJ
properly relied upon this testimony in making the disability determination.
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, the Court
DENIES Plaintiff’s motion for judgment on the pleadings, GRANTS Defendant’s
33

request that the Commissioner’s decision be affirmed, and DISMISSES this action from
the docket of the Court. A Judgment Order shall be entered accordingly.
The Clerk of this Court is directed to transmit copies of this Memorandum Opinion
to counsel of record.
ENTERED: May 11, 2017

34