MAX O. COGBURN, Jr., District Judge.
Plaintiff applied for disability insurance benefits and Supplemental Security Income (SSI) benefits in November 2012, alleging that she became disabled on August 27, 2012. (Tr. 266, 274). Her claim was denied at the initial and reconsideration levels for review. (Tr. 175, 189, 274). Plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 207). A hearing was held before Jane Crawford, an ALJ, on January 12, 2015, at which plaintiff had an attorney representative present. (Tr. 66). In a January 29, 2015 written decision, the ALJ denied the plaintiff's claim. (Tr. 45, 48). Plaintiff requested review of the ALJ's decision. (Tr. 44). The request for review was denied by the Appeals Council on March 10, 2016 (Tr. 1), rendering the ALJ's decision the final decision of the Commissioner.
It appearing that the ALJ's findings of fact are supported by substantial evidence, the court adopts and incorporates such findings herein as if fully set forth. Such findings are referenced in the substantive discussion which follows.
The only issues on review are whether the Commissioner applied the correct legal standards and whether the Commissioner's decision is supported by substantial evidence.
The court has read the transcript of plaintiff's administrative hearing, closely read the decision of the ALJ, and reviewed the relevant exhibits contained in the extensive administrative record. The issue is not whether a court might have reached a different conclusion had it been presented with the same testimony and evidentiary materials, but whether the decision of the administrative law judge is supported by substantial evidence. The court finds that the ALJ's decision was supported by substantial evidence.
A five-step process, known as "sequential" review, is used by the Commissioner in determining whether a Social Security claimant is disabled. The Commissioner evaluates a disability claim under Title XVI pursuant to the following five-step analysis:
20 C.F.R. § 416.920(a)-(f). The burden of proof and production during the first four steps of the inquiry rests on the claimant.
At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity since August 27, 2012, which was the alleged onset date of the purported disability. (Tr. 50). At step two, the ALJ found that the plaintiff had the following severe impairments: degenerative disc of the cervical spine with radiculopathy, osteoarthritis of the right knee, popliteal cyst left knee, plantar fasciitis, a history of asthma, hypertension, obesity, and major depressive disorder. (Tr. 50-51). The ALJ also noted that the plaintiff had the non-severe impairment of recurrent renal stones. (Tr. 51). At step three, the ALJ determined that the plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 51).
The ALJ concluded that the plaintiff had the residual functional capacity (RFC) to perform sedentary work, except that she would need the option to stand for a couple minutes a few times per hour. (#53). The ALJ limited the plaintiff to performing simple and routine tasks and noted that she could tolerate frequent superficial contact with co-workers and the public. (#53). The ALJ found that the plaintiff could occasionally climb ramps and stairs, balance, stoop, kneel, crawl, and crouch but could not do or work in areas in areas with excessive dust or other respiratory irritants.
At step four, the ALJ found that plaintiff Palmer could not perform her past relevant work. (#56). At step five, the ALJ concluded that there were jobs that exist in significant numbers in the national economy that the plaintiff could perform, given her age, education, work experience, and RFC. (#57). Accordingly, the ALJ determined that the plaintiff had not been under a disability within the meaning of the Social Security Act, 20 C.F.R. 404.1520(g), from August 27, 2012. (#57).
The court has closely read plaintiff's Memorandum of Law supporting her Motion for Summary Judgment (#12). Plaintiff has made the following assignments of error:
Plaintiff's assignments of error will be discussed seriatim.
Plaintiff first argues that the ALJ erred at step two in finding that plaintiff's kidney stones and migraine headaches were not disabling. A "severe" impairment is one that "significantly limits an individual's physical or mental abilities to do basic work activities." S.S.R. 96-3p. In order to be considered a "severe" impairment, the limitation must have lasted or must be expected to last for at least 12 consecutive months.
The plaintiff noted that each episode of her kidney stones does not last for 12 consecutive months. Pl. Br. (#12) at 9. The record before the ALJ, as discussed in her decision, notes that the limitation due to kidney stones was "non-severe" as she had such ailment during August and September 2014. (Tr. 51).
Plaintiff cites to several records before the alleged onset date of August 2012, (Tr. 438-442, 448-454, 458-460, 464-465, & 478-479). Rather than support the plaintiff's position, these additional records undercut her case. The plaintiff was able to work while being treated for kidney stones in the fall of 2010 and between August and September 2011.
The ALJ was provided with the extant record, including an exhibit indicating imaging for a kidney stone in August 2014 (Tr. 619-621), which may have been at the plaintiff's request as she was in the hospital after suffering a fall and hitting her head.
The task before the court is not a
The plaintiff next contends that the ALJ erred in not adequately considering her migraine headaches at step two. Plaintiff cites to her testimony at the hearing before the ALJ which noted that the plaintiff claimed to have daily headaches lasting five to six hours. (Tr. 81).
The ALJ is free to consider evidence presented at the hearing before her, including the claimant's own testimony. In her testimony (indeed on the same transcript page as plaintiff's cited reference), the plaintiff noted that she could take an Excedrin and return to her normal activities within ten to fifteen minutes. (Tr. 81). Moreover (also on the same transcript page), she noted that the migraine headaches were a symptom of the bulging disc. (Tr. 81).
Even if the ALJ failed to consider daily ten-to-fifteen minute headaches as a "severe" limitation, it does not constitute error. The court concurs with its colleague elsewhere in the state that "it is not error for an ALJ not to make a determination regarding the severity of all of a claimant's impairments where the ALJ finds the claimant has a severe impairment or combination of impairments, and the ALJ considers the omitted impairments at later steps in the sequential evaluation."
In this case, the ALJ continued to step three.
Plaintiff next argues that the ALJ did not afford proper weight to the opinion evidence presented. Specifically, plaintiff contends that (a) the opinion of a treating physician, Dr. James Foushee, was not given controlling weight and (b) the ALJ improperly weighed the opinion of the state consultative examiner, Dr. Carla Duszlak. These contentions are discussed in detail below.
Plaintiff argues that Dr. Foushee's letter should be given controlling weight. Dr. James Foushee wrote an undated, one-page letter that was submitted and expressly reviewed by the ALJ.
The ALJ properly weighed Dr. Foushee's letter for two reasons. First, the ALJ is expressly bound to not give controlling weight to treating source opinions as to the ultimate issue before the ALJ, such as Dr. Foushee's conclusion that the plaintiff was unable to return to work of any type. (Tr. 701). The ability to work, the ultimate issue in the "disability" analysis, is one reserved to the Commissioner. S.S.R. 96-5 is clear:
Moreover, controlling weight is only merited to a treating source opinion when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record." 20 C.F.R. § 404.1527. Here, Dr. Foushee's opinion was found to be inconsistent with the other evidence in the case record. (Tr. 55-56). Accordingly, the ALJ could not afford it controlling weight.
The plaintiff also argues that the ALJ improperly weighed the opinion of the state consultative examiner, Dr. Duszlak. The plaintiff contends that the allegedly conclusory analysis would not allow the court to "undertake meaningful substantial evidence review." Pl. Br. (#12) at 12. Also, the plaintiff seeks a finding of error as the ALJ did not mention the Global Assessment of Functioning (GAF) rating that Dr. Duszlak assigned to the plaintiff.
The ALJ discussed Dr. Duszlak's report at some length.
The ALJ's detailed analysis of Dr. Duszlak's findings and her rationale in providing differing weights to portions of the examiner's findings provide far more insight to a reviewing court than that of the expert in
The plaintiff next alleges that an alleged failure to expressly mention the GAF score means that the ALJ's decision was not based on substantial evidence. Pl. Br. (#12) at 13 ("Although ALJ Crawford discussed Dr. Duszlak's opinion, she completely failed to mention the GAF score. Therefore, this decision is not based on substantial evidence."). The ALJ did not fail to mention the GAF score. The GAF score is expressly mentioned in the ALJ's decision, and the ALJ provided an explanation of what a GAF score of 50 would mean for the plaintiff's impairment. The ALJ wrote, "The examiner . . . assessed the claimant with a GAF (global assessment of functioning) score of 50, indicating serious, bordering on moderate, impairment in mental functioning." (Tr. 55). The ALJ then tied the consultative expert's assessment of the GAF score to the RFC limitations. The ALJ noted that limitations to simple, routine tasks and superficial contact with co-workers or the public should accommodate claimant's mental health limitations.
Plaintiff argues that the ALJ erred in finding that Ms. Palmer had the RFC to perform sedentary work. The court reviews this allegation of error not for the ultimate conclusion—that Ms. Palmer could perform sedentary work—but instead whether the ALJ had substantial evidence upon which to make this determination. The court finds that the ALJ had substantial evidence to make such an assessment.
The plaintiff alleges that the ALJ did not take into account plaintiff's physical limitations in assessing her RFC. In particular, plaintiff alleged that she would need to elevate her legs for up to six hours daily, that she could only sit for thirty minutes and stand for up to ten minutes, and that she had to lie down for four-to-five hours daily. Pl. Br. 14 (citing Tr. 77-79). The ALJ expressly considered such allegations and found that the severity that the plaintiff alleged was not supported by the record. (Tr. 53-54). Citing to the objective record, the ALJ detailed how the findings from the record were at odds with the severity of the impairments detailed by the plaintiff.
With regard to mental health limitations, the plaintiff alleges that the ALJ failed to account for these limitations in setting the RFC. The plaintiff's brief cited her testimony that the plaintiff's depression caused her social interaction, concentration, and memory problems and sometimes left her to solitude and crying spells. Pl. Br. (#12) at 14 (citing Tr. 81-83).
The ALJ's decision explicitly mentioned the plaintiff's alleged crying spells and difficulty concentrating. (Tr. 54). The ALJ noted that the plaintiff had provided "very little evidence" for her mental health condition, citing her hearing testimony that she had received a couple months of treatment in early 2014 but noting that there were no supporting records of that treatment. (Tr. 55). Notably, the ALJ assessed the entire record and noted that "the record does not indicate the claimant sought significant mental health treatment for her depression during the alleged disability period, and her treatment notes from her other treating sources do not mention significant mental health symptoms." (Tr. 54). Even so, the ALJ assessed the RFC to accommodate alleged impairments pursuant to her depression and limited the plaintiff to routine, simple tasks and superficial contact with the public and her co-workers. (Tr. 55).
While the ALJ's express discussed the plaintiff's alleged limitations in concentration and considered it in the RFC, the plaintiff argues that the ALJ did not properly account for the limitations in the plaintiff's concentration, persistence, or pace. Pl. Br. (#12) at 14-15. In this case, the ALJ determined that the plaintiff had "moderate difficulties" in concentration, persistence, or pace. (Tr. 52). The ALJ cited to Dr. Duszlak's report that plaintiff had a hard time focusing, but could perform recall and mathematical tasks. (Tr. 52, 535-42). The ALJ also discussed Dr. Duszlak's report and findings with express regard to plaintiff's ability to recall digits, accept instruction, and perform simple, routine tasks. (Tr. 56).
The plaintiff cites to the Fourth Circuit's ruling in
In
In this case, the ALJ cited to plaintiff's own report that she sometimes had a hard time focusing in support of the moderate difficulty finding. (Tr. 52). In assessing the plaintiff's RFC, the ALJ expressly mentioned plaintiff's reported "crying spells and difficulty concentrating." (Tr. 54). The ALJ discussed the GAF score of 50 and rating of "serious, bordering on moderate, impairment in mental functioning. (Tr. 55). Moreover, the ALJ gave great weight to state psychological consultants. (Tr. 102-117,136-152). Inter alia, these cited reports echoed that the plaintiff reported problems focusing and would sometimes "zone out." (Tr. 108). Also, the ALJ gave some weight to Dr. Duszlak's report that plaintiff may have a hard time with detailed tasks (Tr. 56, 535-42). Dr. Dr. Duszlak's assessment also noted that the plaintiff successfully completed concentration tasks, but reported that she had a "hard time focusing." (Tr. 539, 540). With regard to plaintiff's own reports, the ALJ detailed that a lack of significant mental health treatment suggested that the severity of the mental limitations were not to the degree alleged. (Tr. 54-55). Even so, she determined that the RFC should be assessed as to accommodate the plaintiff's mental limitation, namely her depression. (Tr. 55).
The court is asked whether the ALJ had substantial evidence upon which to base her determination. The court is not "left to guess" at how the ALJ arrived at her determinations of the plaintiff's RFC.
The undersigned has carefully reviewed the decision of the ALJ, the transcript of proceedings, plaintiff's motion and brief, the Commissioner's responsive pleading, and plaintiff's assignments of error. Review of the entire record reveals that the decision of the ALJ is supported by substantial evidence.
The Clerk of Court is directed to enter Judgment pursuant to this Order.
