SONJA F. BIVINS, Magistrate Judge.
Plaintiff Steven R. Brant (hereinafter "Plaintiff"), seeks judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. On May 2, 2017, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 14). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby
Plaintiff protectively filed his application for benefits on April 14, 2015, alleging disability beginning February 23, 2015, based on "PTSD, TBI, memory loss/short term, [and] severe headaches." (Tr. 135, 153, 157). Plaintiff's application was denied and upon timely request, he was granted an administrative hearing before Administrative Law Judge Vickie Evans on January 7, 2016. (Tr. at 37). Plaintiff attended the hearing with his counsel and provided testimony related to his claims. (
Having exhausted his administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). Oral argument was conducted on May 31, 2017 (Doc. 17), and the parties agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff was born on October 7, 1982, and was thirty-three years of age at the time of his administrative hearing on January 7, 2016. (Tr. 37, 45). Plaintiff graduated from high school and completed an associates degree in college in applied science. (Tr. 45).
Plaintiff was a Sergeant in the military (Army National Guard) from 2001 to 2004 serving in the military police. (Tr. 45-46). He received an honorable discharge and currently receives VA disability benefits with a rating of 70% for post traumatic stress disorder. (Tr. 47, 372).
Plaintiff worked as a physical therapist assistant from 2009 to February 2015. (Tr. 49, 164). He stopped working when he received his increased VA disability rating. (Tr. 51-52).
At the administrative hearing, Plaintiff testified that he cannot work due to memory problems, anxiety problems, problems maintaining a schedule, anger, and flashbacks. (Tr. 55-56, 58). He receives therapy at the VA. (Tr. 56). His only medication is Ambien to help him sleep at night. (Tr. 57, 59).
In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied.
An individual who applies for Social Security disability benefits must prove his or her disability. 20 C.F.R. §§ 404.1512, 416.912. Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A);
The claimant must first prove that he or she has not engaged in substantial gainful activity. The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments.
Plaintiff argues that the ALJ erred in failing to assign appropriate weight to the opinions of evaluating psychologist, Dr. Joseph G. Law, examining psychologist, Dr. Jennifer Jackson, Psy.D., and therapist, Ms. Elizabeth Wharton, MS, LMPT, while assigning great weight to the opinions of consultative psychologist, Dr. Thomas Bennett, Ph.D., and State Agency psychologist, Dr. Donald Hinton, Ph.D. (Doc. 9 at 4-11). Defendant counters that the substantial evidence supports the ALJ's assignment of weight to the expert opinions in this case. (Doc. 10 at 3-8). Having reviewed the record at length, the Court finds that Plaintiff's claim is without merit.
As part of the disability determination process, the ALJ is tasked with weighing the opinions and findings of treating, examining, and non-examining physicians. In reaching a decision, the ALJ must specify the weight given to different medical opinions and the reasons for doing so.
When weighing the opinion of a treating physician, the ALJ must give the opinions "substantial weight," unless good cause exists for not doing so.
Whether considering the opinions of treating, examining, or non-examining physicians, good cause exists to discredit the testimony of any medical source when it is contrary to or unsupported by the evidence of record.
First, with respect to Plaintiff's argument that the ALJ erred in assigning little weight to the opinions of evaluating psychologist, Dr. Joseph Law, regarding Plaintiff's functional limitations, the record shows that Dr. Law evaluated Plaintiff as part of Plaintiff's VA disability proceedings, seeing him on five occasions from January to May 2014. (Tr. 252). On July 26, 2014, Dr. Law completed a report based on his evaluations. He opined that Plaintiff has "significant cognitive deficits" due to traumatic brain injury (TBI) residuals from a concussive injury sustained in military combat in Iraq, that Plaintiff has markedly impaired social and occupational functioning, difficulty understanding complex commands, impaired judgment, marked disturbances in mood and motivation, significant deficits in being able to adapt to stressful circumstances such as work and social relationships, and marked impairment in his ability to stay on task and to adapt to work settings as a result of his TBI residuals. (Tr. 252, 259-60). Dr. Law diagnosed Plaintiff with chronic PTSD, mild neurocognitive disorder due to TBI, mild alcohol use disorder, and unspecified depressive disorder. (Tr. 259).
The record shows that the ALJ considered these opinions at length and determined that Dr. Law's assessment of Plaintiff's functional limitations was entitled to little weight because his opinions were not consistent with Plaintiff's treatment records nor with Plaintiff's activities of daily living. (Tr. 26-27). The Court agrees.
As stated, Dr. Law opined that Plaintiff has marked impairments as a result of his significant cognitive deficits from TBI. Yet, Plaintiff's VA treatment records reflect no diagnosis of TBI, no residual problems from TBI, and no limitations from TBI.
Plaintiff's wife confirmed that Plaintiff helps prepare meals, takes care of their son and the dog, does household chores and yard work, does his personal care without assistance, drives, shops, handles the finances, plays golf, does not need reminders or someone to accompany him to go places, and follows basic instructions, although he has problems with intricate instructions, gets frustrated easily, has trouble sleeping, and does not handle stress well. (Tr. 199-205).
As the ALJ found, the alleged severity of Plaintiff's limitations, as opined by Dr. Law, is inconsistent with the substantial medical evidence, as well as with the evidence of Plaintiff's activities of daily living. For these reasons, the ALJ had good cause to discredit Dr. Law's opinions.
Likewise, Plaintiff's arguments related to Dr. Jackson and Ms. Wharton fail. With respect to the opinion of one-time examining VA psychologist, Dr. Jennifer Jackson, Psy.D., Plaintiff is correct that the ALJ failed to even mention Dr. Jackson's opinions. The record shows that Dr. Jackson examined Plaintiff on August 13, 2014, and, based largely on Plaintiff's reports of symptoms, opined that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, that he met all of the diagnostic criteria for PTSD, that he had depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and suicidal ideation, that he had a significantly reduced tolerance for frustration, and that he had sleep disturbances, hypervigilance, difficulty regulating mood, angry outbursts, difficulty working under deadlines and pressure, difficulty interacting with others, and difficulty with focus, attention, and concentration. (Tr. 282-89). Because these opinions appear to be based, in large part, on Plaintiff's subjective report of symptoms and, more importantly, because the severity of these opinions is inconsistent with the substantial medical evidence and activities of daily living detailed above, the Court finds that any error by the ALJ in failing to discuss Dr. Jackson's opinions was harmless.
With respect to Ms. Wharton, Plaintiff's VA therapist, Plaintiff argues that the ALJ erred in assigning little weight to her opinion that Plaintiff's PTSD symptoms cause severe restrictions in social and emotional functioning. (Tr. 380). Plaintiff argues that, while Ms. Wharton is not an "acceptable medical source," her opinion can be used to determine the severity of his impairments and how they affect his ability to function.
Plaintiff is correct that licensed therapists are not "acceptable medical sources" under the Social Security administrative regulations.
In this case, the ALJ explained that she gave little weight to Ms. Wharton's opinion because her evaluation letter was undated and because it was inconsistent with Plaintiff's treatment records, particularly recent records which showed treatment only for sleep concerns. (Tr. 27). Plaintiff points out that Ms. Wharton's letter references Plaintiff's age as 32, which places the time of the letter between October 7, 2014, and October 7, 2015, encompassing Plaintiff's alleged onset date. (Tr. 382-83). Be that as it may, it does not change the fact that Ms. Wharton's opinion is inconsistent with Plaintiff's treatment records and evidence of his activities of daily living, as detailed above. Moreover, the ALJ agreed that Plaintiff's PTSD is a severe impairment; however, based on the substantial evidence, concluded that Plaintiff's PTSD symptoms cause only moderate difficulties in social functioning and concentration, persistence, or pace, which the ALJ accommodated by limiting the RFC to work involving only simple, repetitive instructions, having "no more than superficial interaction with the general public," and only "occasional interaction with supervisors and coworkers for non-collaborative work." (Tr. 22-23, 24). Because Ms. Wharton is an "other source," and the level of severity of limitations which she opined is inconsistent with the substantial evidence detailed above, the ALJ had good cause to assign her opinion little weight.
Next, Plaintiff argues that the ALJ erred in assigning great weight to the opinions of consultative psychologist, Dr. Thomas Bennett, Ph.D., and State Agency reviewing psychologist, Dr. Donald Hinton, Ph.D. (Doc. 9 at 9). Defendant counters that these opinions are consistent with the substantial evidence in the case.
The record shows that consultative psychologist, Dr. Thomas Bennett, Ph.D., evaluated Plaintiff on June 23, 2015, and that his diagnostic impression was PTSD by history, persistent depressive disorder with anxious distress, probable alcohol use disorder, and previous diagnosis of mild neurocognitive disorder due to traumatic brain injury with no obvious signs at this time. (Tr. 363). Plaintiff reported to Dr. Bennett that he was on no medication for mental health issues (Tr. 360). Dr. Bennett found that Plaintiff's responses to cognitive tasks were "much improved" when compared to earlier reports (Tr. 363), specifically, that Plaintiff had normal speech, normal range of affect with a mildly dysphoric mood, normal orientation, normal thought processes and content, no difficulty with serial sevens, calculations, counting, or spelling backwards (Tr. 361), good memory, average fund of information, judgment, and intelligence, and fair insight. (Tr. 361-62). Plaintiff reported a wide variety of activities including playing golf, some childcare, cooking, chores, yard work, and shopping. (Tr. 362-63). Dr. Bennett opined that, while Plaintiff's activities and interests were constricted, his ability to relate to others was average, as was his ability to function independently and understand and carry out instructions. (
With respect to State Agency psychologist, Dr. Donald Hinton, Ph.D., the record shows that he reviewed Plaintiff's medical records and opined that Plaintiff can understand and remember at least simple instructions, carry out simple tasks, and maintain attention and concentration for at least two hour time periods during an eight hour day. (Tr. 78). Dr. Hinton further opined that Plaintiff would encounter social restrictions, mainly when interacting with the general public, but that the rest of his social capacity would not be significantly restricted. (
Contrary to Plaintiff's argument, the Court finds that the opinions of Dr. Bennett and Dr. Hinton are consistent with the substantial evidence detailed above and that the opinions of Dr. Jackson, Dr. Law, and Ms. Wharton are inconsistent with the substantial evidence in this case. Therefore, the ALJ did not err with respect to the weight assigned to the expert evidence in this case, and Plaintiff's claim must fail.
Last, Plaintiff argues that the RFC is inconsistent with his diagnoses of PTSD, the opinions Dr. Jackson, Dr. Law, and Ms. Wharton, and the VA's 70% disability rating for PTSD. (Doc. 9 at 6). Residual functional capacity is a measure of what Plaintiff can do despite his or her credible limitations.
The ALJ found that Plaintiff has the RFC to perform "a full range of work at all exertional levels with the following non-exertional limitations: He can understand, remember and carry out simple, repetitive instructions and can persist at that level for eight hours per day, five days per week consistently. He can have no more than superficial interaction with the general public and can have occasional interaction with supervisors and coworkers for non-collaborative work — meaning the work is not dependent upon working in concert with others to achieve a desired result. He can adapt to occasional changes in the work setting." (Tr. 24) (emphasis added). Based upon the testimony of the vocational expert, the ALJ concluded that Plaintiff cannot perform his past work as a physical therapy assistant or military policeman but that he can perform other work, such as that of a groundskeeper (medium, unskilled), janitor (medium, unskilled), and bench assembler (light, unskilled). (Tr. 30-31, 62).
The evidence and Plaintiff's arguments related to Dr. Jackson, Dr. Law, and Ms. Wharton have been discussed at length and will not be repeated here. However, with respect to Plaintiff's argument that the ALJ erred in failing to properly consider his 70% VA disability rating for PTSD (Tr. 372), a review of the record reveals that the ALJ expressly discussed the VA rating and noted that it was being considered along with other evidence in the record. (Tr. 28-30). The record further reveals that the ALJ gave it "some weight," but not "controlling weight," because of the difference in standards utilized by the VA and because the evidence supported a finding that Plaintiff's limitations did not completely disable him from participating in substantial gainful activity, particularly considering the non-exertional limitations contained in the RFC. (Tr. 28-29). The ALJ expressly noted that Plaintiff had no hospitalizations related to his mental health conditions, nor any significant treatment for acute symptoms since his onset date. (Tr. 30). Moreover, Plaintiff took no medication for his conditions, except Ambien for sleep, and he lived a fairly normal life, taking his child to school, going to the gym, and playing golf. (Id.). The record bears out these findings and supports the ALJ's conclusion that Plaintiff's activities and treatment record are not consistent with a finding of total disability. Indeed, Plaintiff has failed to show that any limitations caused by his mental impairments exceed the RFC and are not accommodated by the restrictions to "simple, repetitive instructions," "superficial interaction with the general public," "occasional interaction with supervisors and coworkers for non-collaborative work," and only "occasional changes in the work setting." (Tr. 24).
Based on the foregoing, the Court finds that Plaintiff's claim is without merit.
For the reasons set forth herein, and upon careful consideration of the administrative record and memoranda of the parties, it is hereby