DONNA F. MARTINEZ, Magistrate Judge.
The plaintiff, Dan Wayne Lussier, Jr., seeks judicial review pursuant to 42 U.S.C. § 405(g) of a final decision by the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Pending before the court are the plaintiff's motion to reverse the Commissioner's decision (doc. #22) and the Commissioner's motion to affirm the decision. (Doc. #25.) For the reasons set forth below, the plaintiff's motion is denied and the defendant's motion is granted.
On October 25, 2011, the plaintiff applied for DIB and SSI alleging that he was unable to work due to "TBI; back, hip, neck and shoulder pain; personality disorder; major depression; and hypertension." (R. at 590.) The Social Security Administration denied the plaintiff's applications initially and on reconsideration. The plaintiff requested a hearing before an Administrative Law Judge. A hearing was held on August 20, 2013, after which the ALJ issued an unfavorable decision. On May 7, 2015, the Appeals Council remanded for a new hearing to obtain vocational expert testimony. (R. at 36.) A hearing was held on April 3, 2016 at which the plaintiff, represented by counsel, and a vocational expert testified. A supplemental hearing for additional vocational testimony was held on July 26, 2016. (R. at 230-243.) Because he had returned to work, the plaintiff amended his claim to a closed period of benefits for the period of December 31, 2009 (his last date insured) through June 16, 2015. (R. at 232.) On November 16, 2016, the ALJ issued a decision finding that the plaintiff was not disabled under the Social Security Act. On December 3, 2017, the Appeals Council denied the plaintiff's request for review. This action followed.
The court assumes familiarity with the plaintiff's medical history (summarized in a stipulation of facts, doc. #26, that are adopted and incorporated herein by reference), and the five sequential steps used in the analysis of disability claims. The court cites only those portions of the record and the legal standard necessary to explain this ruling.
The ALJ first determined that the plaintiff had not engaged in substantial gainful activity from December 31, 2009 through June 16, 2015. (R. at 14.) At step two, the ALJ found that the plaintiff had severe impairments of "acquired traumatic brain injury, depressive disorder, anxiety, status post thoracic spine fracture [and] degenerative disc disease of the lumbar spine." (R. at 15.) At step three, the ALJ found that the plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]" (R. at 15.) Specifically, the ALJ found that the plaintiff's impairments, considered singly and in combination, did not meet or medically equal the criteria of Listings 1.04 (disorders of the spine), 12.02 (organic mental disorder), 12.04 (affective disorders), and 12.06 (anxiety disorders). The ALJ next found that the plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that he is limited to "simple, routine, repetitious work tasks that do not require teamwork or working closely with the public; occasional interaction with the public, co-workers, and supervisors. He is further limited to occasional bending, balancing, kneeling, crawling, twisting, squatting, and climbing." (R. at 17.) At step 4, the ALJ found that the plaintiff was unable to perform his past relevant work as an auto body technician. (R. at 21.) At step 5, after considering the plaintiff's age, education, work experience, residual functional capacity, and the testimony of a vocational expert, the ALJ found that there existed jobs in significant numbers in the national economy that the plaintiff could perform. (R. at 22.) Accordingly, the ALJ determined that the plaintiff was not disabled within the meaning of the Act from December 31, 2009 through June 16, 2015. (R. at 22.) This action followed.
"This court's review of the ALJ's decision is limited."
The plaintiff asserts that remand is warranted because the ALJ erred in finding that the plaintiff does not meet Listing § 12.02; failed to properly apply the treating physician rule; and failed to fully develop the record.
The plaintiff argues that (1) the ALJ failed to adequately explain his finding that the plaintiff does not meet Listing 12.02 and (2) the finding is not supported by substantial evidence.
The plaintiff bears "the burden of proof at step three to show that [his] impairments meet or medically equal a Listing."
As a threshold matter, the plaintiff incorrectly cites to the current version of Listing 12.02, which became effective January 17, 2017.
Listing 12.02 applies to "Organic Mental Disorders," defined as "[p]sychological or behavioral abnormalities associated with a dysfunction in the brain." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02. "To satisfy this listing, plaintiff's impairment must meet both the paragraph A and B criteria, or the paragraph C criteria of that list."
The ALJ determined that the plaintiff did not meet the paragraph B criteria.
To satisfy paragraph B, the plaintiff's mental impairment must result in at least two of the following:
The ALJ found that the plaintiff had a mild restriction in the activities of daily living; moderate difficulties with social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and one episode of decompensation of extended duration. (R. at 16.)
The plaintiff argues that the ALJ failed to provide an adequate explanation for his finding that the plaintiff did not meet the listing. The plaintiff asserts that the ALJ mentions Listing 12.02 "only in passing" and provides "no analysis." (Doc. #22-1 at 6.)
The plaintiff's argument appears to arise from his reliance on the incorrect version of the Listing. The ALJ utilized the correct version of Listing 12.02 and provided an extensive discussion of the evidence regarding each of the paragraph B requirements.
The plaintiff next argues that substantial evidence does not support the ALJ's determination that the plaintiff did not meet the requirements of paragraph B. The plaintiff points to an April 2012 mental functioning questionnaire co-signed by psychiatrist Dr. Brian Benton. Under the category of Task Performance, Dr. Benton opined that the plaintiff has "obvious problems" with: carrying out multi-step instructions, focusing long enough to finish assigned simple activities or tasks, performing basic work activities at a reasonable pace/finishing on time, and performing work activity on a sustained basis. (Doc. #22-1 at 5; doc. #26 at 17; R. at 868.) This evidence, the plaintiff contends, "satisfies the B criteria requiring marked limitations on [sic] two areas of mental functioning: understand, remember, or apply information and concentrate, persist, or maintain pace."
Substantial evidence supports the ALJ's determination that the plaintiff did not satisfy the paragraph B criteria of Listing 12.02. As to the Activities of Daily Living, Dr. Benton found that the plaintiff had "no problem"
Substantial evidence also supports the ALJ's finding that the plaintiff had a less than marked restriction in social functioning. The record reflects that the plaintiff was dating, attending therapy, spending time with his son, went on job interviews, and did "odd jobs" and "side jobs for friends." (Jt Stip at 14, R. at 1270.) Dr. Benton assessed the plaintiff with "no problem" "getting along with others without distracting them or exhibiting behavorial extremes" and a "slight problem" with "interacting appropriately with others in a work environment," "asking questions or requesting assistance," and "respecting/responding appropriately to others in authority." (R. at 868.)
Because the ALJ's findings as to the plaintiff's activities of daily living and social functioning are supported by substantial evidence, and the plaintiff does not contend that he suffered repeated episodes of decompensation (each of extended duration), the court need not reach the issue of whether the ALJ's findings as to the plaintiff's ability to maintain concentration, persistence and pace are supported by substantial evidence.
The plaintiff next contends that the ALJ erred in his application of the "treating physician rule."
"[T]he opinion of a claimant's treating physician as to the nature and severity of the impairment is given controlling weight so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record."
Dr. Umashankar co-signed an August 2013 Medical Source Statement of Ability to Do Work-Related Activities (Mental) completed by LCSW Melissa Razel of Southeastern Mental Health Authority ("SMHA").
The ALJ did not accord controlling weight to Dr. Umashankar's opinion that the plaintiff suffered from marked and extreme limitations. He explained that Dr. Umashankar's opinion was not supported by clinical signs and findings and was inconsistent with the plaintiff's treatment and the opinions of the other examining and non-examining physicians. (R. at 20-21.)
The ALJ did not err. Psychiatrist Brian Benton co-signed a mental source statement in April 2012. He indicated that the plaintiff had impaired cognitive functions due to a brain injury, especially with executive functions. (Jt Stip at 17, R. at 866.) Dr. Benton noted that the plaintiff had good hygiene, adequate grooming, normal speech, no evidence of loosening or flight of ideas, and mood congruent to affect, ranging from mildly depressed to euthymic, depending on stress level. The plaintiff's judgment and insight were adequate given cognitive limitations. He had "no problems" caring for his physical needs, using good judgment regarding safety, using appropriate coping skills to meet the ordinary demands of a work environment, or getting along with others without distracting them or exhibiting behavioral extremes. He had "slight" problems with handling frustration appropriately, social interactions, carrying out single-step instructions, and changing from one simple task to another. The plaintiff had "obvious" problems with carrying out multi-step instructions, focusing long enough to finish assigned simple activities or tasks, performing basic work activities at a reasonable pace/finishing on time, and performing work activity on a sustained basis. The plaintiff had neither "serious" nor "very serious" problems in any of the tasks listed under the categories of Activities of Daily Living, Social Interactions and Task Performance. (R. 866-69).
Dr. Umashankar's opinion also is inconsistent with the results of the plaintiff's neuropsychological examinations conducted by clinical neuropsychologist Steven Brown, Psy.D. Dr. Brown found that the plaintiff was alert, fully oriented, pleasant, cooperative, and adequately groomed; his affect was full range and appropriate to content; he had normal speech; no comprehension deficits, paraphasic errors, or word-finding problems during casual conversation; his thoughts were organized, relevant, and goal-directed; and there was no indication of hallucinations or delusions. In testing performed in both 2008 and 2012, the plaintiff's inconsistent effort and exaggeration yielded non-credible test findings. (Jt Stip at 20.)
Dr. Umashankar's opinion that the plaintiff had "marked" restrictions in his ability to interact appropriately with supervisors and coworkers and an "extreme" restriction in his ability to respond appropriately to work pressures in a usual work setting is also inconsistent with the assessments by State agency psychological consultants. Drs. Harvey and Bangs reviewed the medical evidence and opined that the plaintiff had no marked limitations. (Jt Stip at 18.)
Dr. Umashankar's assessment is also unsupported by an SMHA evaluation. In a December 2012 evaluation at SMHA, the plaintiff was observed as alert, fully oriented, adequately groomed, and cooperative, with normal speech, calm motor activity, mildly depressed mood, appropriate affect, intact thought process, no impairment in thought content, no suicidal or homicidal ideation, intact memory, no intellectual impairment, intact cognitive functioning, and fair-to-poor insight and judgment due to a tendency to downplay negative behaviors in interpersonal issues and substance use. He was assessed with a GAF of 60. (R. 1084-98).
SMHA notes from June and September 2013 and April 2014 indicate that the plaintiff was psychiatrically stable. (R. at 1382, 1459, 1479.) December 2013 SMHA notes state that the plaintiff was cooperative, had normal speech, appropriate affect, euthymic mood, goal directed and logical thought process, intact memory and knowledge. His judgment was impaired and his insight poor. (R. at 1466.) He was assessed as psychiatrically stable. (R. at 1467.) SMHA notes are replete with the references to plaintiff's working at odd jobs and his efforts looking for employment. Because Dr. Umashankar's opinion was not consistent with other substantial evidence in the record, including the opinions of other medical experts, the ALJ was not obligated to give it controlling weight.
The plaintiff next argues that the ALJ violated the treating physician rule because he failed to address the factors set forth in § 404.1527(c). It is apparent from the decision, however, that the ALJ considered the appropriate factors when deciding the weight to ascribe to Dr. Umashankar's opinion. (See R. at 20 (explaining that Dr. Umashankar's opinion was not supported by clinical signs and findings; that the limitations described in the opinion were inconsistent with the opinions of other treaters, as the ALJ had previously discussed; and that Dr. Umashankar specialized in psychiatry.)
The plaintiff's final argument is that the ALJ failed to adequately develop the record. The plaintiff asserts that he should have been permitted to present the testimony of Brian Parkhurst, an Acquired Brain Injury Specialist from Reliance House, a social service agency.
At the April 13, 2016 hearing before the ALJ, the plaintiff testified that he had been assigned caseworkers from Reliance House. He explained that the caseworkers had given him "a lot of support" and help, including assistance in using the computer to apply for jobs online. (R. at 296.) After completing his examination of the plaintiff, plaintiff's counsel did not call Mr. Parkhurst as a witness (the record indicates he was present) but rather asked the ALJ "to consider Mr. Parkhurst's testimony." (R. at 298.) The ALJ responded "We'll hold that under advisement, if we need it, for even a supplemental hearing." Plaintiff's counsel did not press the issue or object. The ALJ then proceeded to hear evidence from the vocational expert. In his closing, plaintiff's counsel explained that "the proffer for Mr. Parkurst would be his skill with dealing with people with acquired brain injuries" and the fact that he had worked with the plaintiff since July 2013. (R. at 302.) Plaintiff's counsel did not articulate any specific evidence to which Mr. Parkhurst would testify.
Thereafter, the ALJ scheduled a supplemental administrative hearing on July 26, 2016 to obtain additional vocational testimony by a new vocational expert. (R. at 233.) At that hearing, plaintiff's counsel stated that Mr. Parkhurst had been prepared to testify at the prior hearing in April but that he was not available for the supplemental hearing. (R. at 241.) The ALJ responded that "I don't think you told me about him" and indicated that he would not have "declined some testimony like that." The ALJ told plaintiff's counsel could submit written evidence as to what Mr. Parkhurst "want[ed] to say." (R. at 242.)
Subsequently, in a letter to the ALJ in August 2016, plaintiff's counsel argued that the ALJ should not have held a supplemental hearing to adduce additional vocational testimony. (R. at 697.) Plaintiff's counsel said that Mr. Parkhurst had left his employment at Reliance House after the April hearing. (R. at 698.) Plaintiff's counsel argued that Mr. Parkhurst "should have been permitted to testify at the April 13, 2016 hearing" and that "[t]he failure to take this testimony was extremely prejudicial to the plaintiff" because it would have "enabled [plaintiff's counsel] cross examin[e] the vocational expert more effectively." (R. at 698.) He did not explain further.
The ALJ stated in his decision that Mr. Parkhurst was not available at the July 2016 hearing but incorrectly stated that plaintiff's counsel did not request that Mr. Parkhurst testify at the April 2016 hearing. (R. at 12.) The ALJ explained that although he told plaintiff's counsel he could submit "any written statements he wishe[d] to submit from Mr. Parkhurst" for the court's consideration, plaintiff's counsel had not submitted anything. (R. at 12.)
"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record. . . . This duty exists even when the claimant is represented by counsel. . . ."
The plaintiff contends that the "ALJ effectively prevented the plaintiff from fully presenting his case." (Doc. #22-1 at 11.) According to the plaintiff, the ALJ's failure to permit Mr. Parkhurst's testimony was harmful because the ALJ failed to "evaluate or discuss the many pages of treatment notes from [him], indicating among other things, that the plaintiff needed assistance with his home, which at times, was in disarray.
The ALJ did not err. Here, the ALJ had before him the plaintiff's testimony (at the 2013 and April 2016 hearings) and a complete medical record encompassing more than 1500 pages of medical evidence, including records from Reliance House. (R. 1250-1367, 1386-1415, 1649-1747, 1838-48).
For these reasons, the plaintiff's motion to reverse and/or remand the Commissioner's decision (doc. #22-1) is denied and the defendant's motion to affirm the decision of the Commissioner (doc. #25-1) is granted.
SO ORDERED.
