JOE L. WEBSTER, Magistrate Judge.
Plaintiff, Willie Douglas Massey, brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (the "Act"), as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain review of a final decision of the Commissioner of Social Security denying his claims for a Period of Disability ("POD"), Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Act. The Court has before it the certified administrative record and cross-motions for judgment.
Plaintiff protectively filed applications for a POD, DIB, and SSI on November 2, 2009 alleging a disability onset date of February 2, 2000.
The Commissioner held that Plaintiff was not under a disability within the meaning of the Act. Under 42 U.S.C. § 405(g), the scope of judicial review of the Commissioner's final decision is specific and narrow. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). This Court's review of that decision is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. § 405(g); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hunter, 993 F.2d at 34 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). It "consists of more than a mere scintilla" "but may be somewhat less than a preponderance." Id. (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
The Commissioner must make findings of fact and resolve conflicts in the evidence. Hays, 907 F.2d at 1456 (citing King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)). The Court does not conduct a de novo review of the evidence nor of the Commissioner's findings. Schweiker, 795 F.2d at 345. In reviewing for substantial evidence, the Court does not undertake to re-weigh conflicting evidence, to make credibility determinations, or to substitute its judgment for that of the Commissioner. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing Hays, 907 F.2d at 1456). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)." Craig, 76 F.3d at 589 (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). The denial of benefits will be reversed only if no reasonable mind could accept the record as adequate to support the determination. See Richardson v. Perales, 402 U.S. 389, 401 (1971). The issue before the Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding that Plaintiff is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See id.; Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
Plaintiff raises four issues. First, he contends that the ALJ erred by giving little weight to the opinion of Dr. Joseph Appollo. (Docket Entry 14 at 3.) Second, he contends that the ALJ did not develop the record and did not mention favorable evidence. (Id. at 6.) Third, he asserts that the ALJ erred in his RFC finding and erred further by framing a hypothetical question to the VE that failed to account for his low IQ. (Id. at 7.) Last, Plaintiff contends that the ALJ erred by disregarding his low GAF scores. (Id. at 9.)
Plaintiff contends that the ALJ committed reversible error in giving "little weight" to the medical opinion of Dr. Joseph Appollo. (Id. at 3-5.) Dr. Appollo conducted a consultative evaluation of Plaintiff on January 22, 2010. (Tr. at 423-435.) Accordingly, he conducted a series of tests, including the Woodcock Johnson Tests of Achievement, the Wide Range Assessment of Memory and Learning, and the Wechsler Adult Intelligence Scale ("WAIS"). (Id.) All test results were "very low." (Tr. 433.) Dr. Appollo concluded that Plaintiff "may have difficulty understanding, retaining and following instructions, but should be reviewed with any previous academic records." (Id. at 434.) He concluded further that Plaintiff "can attend for only short periods of time," "can relate to others," and "does not appear to be able to handle stress." (Id.) While noting Plaintiff's very low test scores, Dr. Appollo also stated they should be reviewed in light of his medical or academic records and that "[p]oor motivation needs to be ruled out." (Id. at 433.) Plaintiff was diagnosed with rule out cognitive disorder, not otherwise specified; rule out mild mental retardation; and was assigned a global assessment of functioning ("GAF") score of 50. (Id. at 434.)
The ALJ afforded Dr. Appollo's opinion little weight, essentially discounting the low scores Plaintiff received on the administered tests, because these results were inconsistent with his prior performance in school. (Tr. 30.) Plaintiff contends that the ALJ's reasons for discounting Dr. Appollo's opinion are "unsustainable." (Docket Entry 14 at 4.) He argues that Dr. Appollo's opinion is corroborated by his school IQ scores and that the ALJ erred by failing to specifically mention them. (Id. at 5.)
An ALJ must evaluate all of the medical opinions in the record in light of: the examining relationship, the treatment relationship, the degree to which the opinion relies on relevant evidence, the consistency of the opinion with the record as a whole, the specialization of the source of the opinion, and other factors brought to the ALJ's attention. 20 C.F.R. § 404.1527(c), 416.927(c). A medical source's opinion must be both well-supported by medical signs and laboratory findings as well as consistent with other substantial evidence in the case record. Id. "[I]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). In reviewing for substantial evidence, the Court does not undertake to re-weigh conflicting evidence, to make credibility determinations, or to substitute its judgment for that of the Commissioner. Craig, 76 F.3d at 590 (citation omitted); accord Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).
The ALJ's decision to give "little weight" to Dr. Appollo's opinion is supported by substantial evidence. The record indicates that Plaintiff, born in 1970, graduated from high school in 1988, was not in special education classes, and did "fairly well" in school.
Nevertheless, Plaintiff points to prior IQ scores he received in the late 1970's and early 1980's and faults the ALJ for not explicitly referencing them in his decision. However, the ALJ stated repeatedly that she considered the entire record, and the Court may rely on these statements.
Yet, even setting this aside, the non-examining state agency physicians also considered these other IQ scores and recommended an RFC limited to simple, routine repetitive tasks, which is consistent with—though less restrictive than—the RFC ultimately adopted by the ALJ. (Tr. 77, 90, 101, 74-84, 87-93, 96-119.) The ALJ indicated that she had considered the medical opinions of these experts, stated that she "generally agree[d] with them," and gave their opinions "significant weight." (Tr. 30.) The logical implication here is that the ALJ found that these older IQ scores did not change the disposition of the RFC or the disability determination.
Plaintiff also states that he was prejudiced by this perceived error, but fails to meaningfully explain how. Plaintiff does not contend that he meets a listing at step three for an intellectual disability and does not state what additional limitation should have been included in his RFC. Dr. Appollo indicated Plaintiff may have difficulty understanding, retaining, and following directions, but can attend for short periods of time and relate to others, and does not appear able to handle stress. (Tr. 434.) In comparison, the ALJ found that Plaintiff could perform simple, routine, repetitive tasks and was able to tolerate only routine changes in a non-production work environment with limited exposure to noise with no contact with the public and only occasional contact with co-workers or supervisors. (Tr. 25.) Given that the ALJ appears to have accounted for Dr. Appollo's proposed limitations, even assuming it was error for the ALJ not to mention the older IQ scores, which it was not, prejudice is absent.
Finally, in attributing little weight to Dr. Appollo's opinion, the ALJ indicated that absent a new brain injury causing a precipitous drop in his IQ, Appollo's test results appeared invalid. (Tr. 30.) See, e.g., Clark v. Colvin, No. 1:12CV127, 2014 WL 2112579, at *4 (M.D.N.C. May 20, 2014). To understand this conclusion, it is important to know that at various points in the record, Plaintiff and his mother indicate that what ultimately turned out to be a lipoma on Plaintiff's head was actually a brain tumor that caused a deterioration in his cognitive abilities. Importantly, Plaintiff asserts, and testified under oath, that he did not have these mental limitations prior to 2009. (Tr. 48-50, 56, 61, 283, 552-53.) Plaintiff, through counsel, now concedes that he did not have brain surgery, nor did he have a brain tumor. (Docket Entry 14 at 4-5.) In light of all this, the ALJ's conclusion that a routine removal of a benign cyst from Plaintiff's head would not account for the low test scores Plaintiff received from Dr. Appollo is supported by substantial evidence (Tr. 29-30 referencing 393-96, 552-53.)
In an overlapping argument, Plaintiff next contends that the ALJ erred by failing to develop the record because he did not mention a statement by Plaintiff's mother that he was in special education classes. (Docket Entry 14 at 6.) This argument is not persuasive.
The ALJ is required "to explore all relevant facts and inquire into the issues necessary for adequate development of the record. . . ." Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). When the evidence submitted by the claimant is inadequate as to whether the claimant is disabled, the ALJ cannot rely on that evidence alone. 20 C.F.R. §§ 404.1512(d), 416.912(d). "Where the ALJ fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded." Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980).
Plaintiff faults the ALJ for "failing to mention" he was in special education classes. (Docket Entry 14 at 6-7.) However, substantial evidence supports the conclusion that Plaintiff was not in special education classes and that he did reasonably well in school. (See e.g., Tr. 56, 59-61, 281, 286, 290, 424.) Plaintiff himself reported to the agency that he did not take special education classes. (Tr. 281.) He later reported the same to Dr. Appollo. (Tr. 424.) Plaintiff's mother reported to an agency employee that Plaintiff had not been in special education classes. (Tr. 286.) She later reported to the agency that Plaintiff was "very smart" and "always made honor roll in school." (Tr. 290.)
Yet, Plaintiff points to a notation by Dr. Swati Dakoriya stating that "Mother reports that [Plaintiff] was in special-ed classes and he did fairly in school. He was a bright and intelligent kid." (Tr. 455.) Defendant contends that this statement appears to contain typographical errors. (Docket Entry 20 at 10-11.) Plaintiff, on the other hand, argues the ALJ should have developed this matter further. However, the ALJ did investigate Plaintiff's academic record further by asking both Plaintiff and his mother how Plaintiff performed in school. (Tr. 48, 56, 59-61.) Plaintiff testified he graduated from high school in 1988 and did fairly well. (Tr. 44, 56, 59-61, 281.) He attributed his lapses in remembering, concentration, reading, and understanding English to his 2009 scalp surgery for lipoma removal. (Tr. 48-49, 56, 61.) When questioned by the ALJ, Petitioner's mother likewise attributed these issues to his scalp surgery and said that in school he had been "normal" and "a very smart guy." (Tr. 58-59.) When examined by Plaintiff's counsel, Plaintiff's mother stated that Plaintiff was a "fairly good student" and that he made "decent grades." (Tr. 60-61.) At the administrative hearing, counsel did not ask Plaintiff or his mother whether Plaintiff was in special education classes. In light of the above, the ALJ satisfied his duty to develop the record. The record contains ample evidence and discussion of this issue.
Plaintiff contends that the ALJ erred by disregarding his low GAF scores
"A GAF score is intended to be used in treatment decision and may have little to no bearing on . . . occupational functioning." Love v. Astrue, No. 3:11-CV-014, 2011 WL 4899989, at *4 (W.D.N.C. Sept. 6, 2011) (unpublished opinion), adopted 2011 WL 4899984 (W.D.N.C. Oct. 14, 2011). Consequently, "it is unsurprising that courts have concluded that `the failure to reference a GAF score is not, standing alone, sufficient ground to reverse a disability determination.'" Clemins v. Astrue, No. 5:13-CV-00047, 2014 WL 4093424, at *1 (W.D. Va. Aug. 18, 2014) (quoting Paris v. Colvin, No. 7:12-CV-00596, 2014 WL 534057, at *6 (W.D. Va. Feb. 10, 2014); Love, 2011 WL 4899989, at *5 (quotation marks omitted). Additionally, reversal on the grounds that the ALJ failed to consider a GAF score "is particularly inappropriate `where the ALJ fully evaluated the records and treatment notes upon which the GAF scores were based.'" Id. (quoting Paris, 2014 WL 534057, at *6).
Here, the ALJ considered the entire range of Plaintiff's GAF scores, noting:
(Id. at 29.) The ALJ stated further that "[t]he undersigned has considered the low GAF scores in the record, but the claimant continues drinking alcohol and those scores appear to be based on what he said and not on any objective criteria." (Id. at 30.)
As explained above, one of the reasons the ALJ discounted Plaintiff's low GAF scores is because they "were based on what he said and not on any objective criteria." This is a proper rationale for discounting GAF scores and is borne out by the record here, given that the GAF scores at issue are not given meaningful discussion in the treatment notes and also largely appear to be based on Plaintiff's subjective reporting.
The ALJ also evaluated all of the medical records upon which the GAF scores were based and took them into consideration in setting forth Plaintiff's RFC. (Tr. 28-30.) While Plaintiff clearly asserts he is disabled in light of his GAF scores, he does not meaningfully take issue with any of the ALJ's findings or conclusions as to the specific medical records on which they are based. Plaintiff's argument fails for this reason alone.
Additionally, where alcohol and/or drug addiction is a contributing factor material to the determination of disability, and the claimant would not be disabled but for the drug addiction or alcoholism, then the claimant is not entitled to disability benefits. See 42 U.S.C. § 423(d)(2)(C). Here, the record demonstrates a history of cannabis, cocaine, and alcohol use. A physical examination record from June 2009, shows that Plaintiff reported that he had been drug-free for seven years. (Tr. 396.) An assessment from Daymark Recovery Services in June 2010, indicates polysubstance dependence in full-sustained remission. (Tr. 452.) On October 4, 2010, Plaintiff presented to the emergency room after he had been drinking alcohol and was exhibiting anger and bizarre behavior. (Tr. 458.) He was discharged on October 6, 2010, and referred for psychiatric treatment. (Tr. 462.) On October 7, 2010, Plaintiff presented to Daymark Recovery Services and reported that he was depressed because he could not find a job. (Tr. 525, 530.) His therapist noted that he was self-medicating his depression with alcohol. (Tr. 530.) In March 2012, Dr. Daniel Johnston assessed that Plaintiff's polysubstance dependence was in remission. (Tr. 548.) Consequently, even if Plaintiff's GAF scores were sufficient to demonstrate he was disabled, which they are not, substantial evidence supports the ALJ's conclusion that alcohol use may have affected Plaintiff's GAF scores.
Finally, as with the ALJ's purported failure to consider past IQ scores, Plaintiff fails to meaningfully explain what further limitations his GAF scores would have justified. Consequently, even if the ALJ somehow failed in evaluating Plaintiff's GAF scores, which is not the case, Plaintiff has not demonstrated prejudice.
Last, Plaintiff contends that the ALJ erred by making an RFC finding, and framing a hypothetical to the VE, that failed to account for his mental limitations stemming from his low IQ, particularly "the frequency and duration of [Plaintiff's] concentrational lapses." (Docket Entry 14 at 7.)
Here, the ALJ stated to the VE:
(Tr. 69.) When asked if that person could do any work besides Plaintiff's past work, the VE answered that "there would be unskilled non-production work at the light level" as a cleaner, laundry worker, or vehicle cleaner. (Id. at 69-70.)
VE testimony as to the existence of jobs will constitute substantial evidence in support of the ALJ's decision if it is in response to a hypothetical question based on an accurate RFC. See Walker v. Bowen, 889 F.2d 47, 50-51 (4th Cir. 1989). Additionally, after the briefing was filed in this case, the Fourth Circuit Court of Appeals decided Mascio v. Colvin, which—in pertinent part—concluded that a claimant's limitations in concentration, persistence, and pace are not addressed by a hypothetical limitation to simple, routine tasks, or unskilled work. 780 F.3d 632, 638 (4th Cir. 2015). Neither party has supplemented the briefing by raising Mascio here, and the undersigned notes that while there are similarities between this case and Mascio, Mascio appears factually distinct from the facts of this case.
More specifically, at step three in this case (Tr. 24.), as in Mascio, 780 F.3d at 638, the ALJ concluded that there were moderate limitations in concentration, persistence, or pace. There is a further similarity to Mascio here as well, because the ALJ limited Plaintiff to simple, routine, repetitive work (Tr. 25), whereas the ALJ in Mascio concluded that the plaintiff could perform unskilled (i.e., simple and routine) work, Mascio, 780 F.3d at 638 n.7. The differences end here, however, because unlike Mascio, the ALJ in this case also limited Plaintiff's exposure to noise; his contact with the public, co-workers, and supervisors; changes in his work environment; and his production pace. (Id.) In light of all this, the undersigned concludes that the ALJ's RFC was based on substantial evidence of record, and his hypothetical to the VE mirrored his RFC determination and properly captured Plaintiff mental limitations. (Tr. 69.) Accordingly, the VE's testimony constituted substantial evidence upon which the ALJ appropriately relied at step five.
After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is supported by substantial evidence. Accordingly, this Court
