DENISE J. CASPER, District Judge.
Plaintiff Kathleen Ferguson ("Ferguson") applied for disability insurance benefits ("SSDI") and supplemental security income ("SSI") with the Social Security Administration ("SSA") on March 18, 2014. Following denial of her claims, pursuant to the procedures set forth in the Social Security Act, 5 U.S.C. § 706, 42 U.S.C. §§ 405(g), 1383(c)(3), Ferguson brought this action for judicial review of the final decision of Defendant Nancy A. Berryhill ("the Commissioner"), Acting Commissioner of the SSA, issued by an Administrative Law Judge ("ALJ") on April 24, 2017. Before the Court are Ferguson's motion to reverse, D. 16, and the Commissioner's motion to affirm that decision, D. 18. For the reasons discussed below, the Court DENIES Ferguson's motion to reverse and ALLOWS the Commissioner's motion to affirm.
This Court has the power to affirm, modify or reverse a decision of the Commissioner upon review of the pleadings and record. 42 U.S.C. § 405(g). Such review, however, is "limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence."
Ferguson was fifty years old when she ceased working on January 31, 2014. R. 199, 430.
In her March 18, 2014 application for SSDI and SSI with the Social Security Administration ("SSA"), Ferguson claimed disability due to severe bilateral carpal tunnel syndrome, spurs and worsening pain in her feet, pain in her left knee and mental illness. R. 194, 413.
Ferguson has been treated for carpal tunnel syndrome. R. 203. Ferguson visited South Shore Orthopedics LLC ("South Shore") on December 30, 2015. R. 747. During this visit, John Kadzielski, M.D. discussed the results of an EMG test from August 25, 2015, which indicated severe bilateral carpal tunnel syndrome in the upper extremities. R. 747. Dr. Kadzielski ordered an injection in the right hand, which was performed on December 30, 2015, and a left carpal tunnel release surgery, which was done on January 5, 2016. R. 747-49. In a follow up appointment on January 20, 2016, Dr. Kadzielski noted that Ferguson was doing well after the surgery and saw improving "paresthesias of the left median nerve distribution." R. 751. Ferguson indicated that the surgery went well and that she felt less pain in her left hand. R. 203.
Ferguson underwent an x-ray from Victor Valley Advanced Imaging on October 29, 2013 that showed there was no "definite fractures or sublaxations" and that there was "straightening of the cervical lordosis," resulting in a diagnosis of degenerative joint disease. R. 952, 977. The internal medicine consultation from MedPro Services Inc. ("MedPro") on July 24, 2014 noted a tenderness in Ferguson's lumbar spine and knees but also that the range of motion of her back and knees was within normal limits. R. 679. Over a year later, on September 15, 2015, Chris Sambaziotis, M.D. an orthopedic surgeon, evaluated Ferguson for her left knee pain. R. 884. Dr. Sambaziotis noted that Ferguson reported mild pain that worsened with ambulation and presented treatment options such as physical therapy, activity modification, weight loss, steroid injection and total knee replacement. R. 886. Ferguson also had an x-ray of her foot on June 17, 2016 which found "mild degenerative changes" and "plantar calcaneal spur." R. 899, 901, 903.
Ferguson has also been treated for thyroid disorder. R. 680. When Ferguson was first diagnosed with Graves' Disease, a disease causing hypothyroidism,
After losing her mother and three sisters over a period of three years, Ferguson has consistently seen mental health professionals. R. 659. On February 12, 2014, Ferguson was admitted to Arrowhead Regional Medical Center ("Arrowhead") for mood disorder, R. 654, 659, stabilized with medicine and discharged on February 14, 2014, R. 657-58. Ferguson received outpatient counseling from Mary Hopwood, NP at Granite Medical Group ("Granite"). R. 1188. Granite records indicate that Ferguson was diagnosed with bipolar disorder and had manic and depressive episodes.
Martina Voglmaier, Ph.D., evaluated Ferguson and performed neuropsychological testing at Nova Psychiatric Service ("NPS") on June 5, 2016 and August 16, 2016. R. 1046. She noted characteristics such as disorganized speech and difficulty recovering following error, R. 1143, Ferguson's ability to sustain attention was impaired. R. 1046.
Ferguson saw her treating psychiatrist, Andrey Gagarin, M.D., beginning in July 2015. R. 208-09. Dr. Gagarin reported, in a December 2016 letter, that Ferguson has Post-traumatic Stress Disorder, Attention-Deficit/Hyperactivity Disorder, Obsessive-Compulsive Disorder and major depression. R. 1185. The letter further noted that Ferguson's mental health conditions manifest in rapid speech, compulsive activities, hyperactive behavior, disturbed sleep, lack of energy and lack of interest in her daily activities.
Ferguson had a "fobi pouch" procedure, a form of gastric bypass surgery, in 1996. R. 863. Because she had a weight loss procedure done before she was told that "she would not be a candidate for another weight loss procedure." R. 779, 963.
At the January 6, 2017 administrative hearing, the ALJ heard testimony from Ferguson and James Soldner, a vocational expert ("VE"). R. 186.
Ferguson testified that before August 15, 2013 she worked primarily as a housekeeper and home health aide for her mother and sister. R. 200. She also did light housekeeping.
Ferguson explained that mental health problems keep her from working and had a breakdown in February 2014 that lead to hospitalization. R. 202, 219. She experiences uncontrollable crying and anxiety that is triggered by unexpected meetings or situations or surprises. R. 206-07. She believes that her mental conditions may have gotten worse when she was hospitalized and after the death of her sister in January 2014 and when she was hospitalized. R. 220-21. Ferguson saw mental health professionals consistently after that. R. 221. She saw Dr. Gagarin, a psychiatrist once a month and attended counseling weekly. R. 208-09, 695.
Ferguson also has reported physical ailments, including carpal tunnel syndrome. R. 203-04. She underwent a "left carpal tunnel release" operation,
According to Ferguson, understanding written information and getting along with others are difficult for her. R. 210. She testified she can walk about two hundred feet, lift twenty pounds, stand about ten minutes and sit for about fifteen to twenty minutes. R. 210-12. Ferguson testified she can lift twenty pounds but has trouble with fine motor skills, such as buttoning clothing, opening a jar or grasping a glass. R. 211. She also has trouble climbing stairs, stooping, kneeling, crawling and crouching. R. 212.
According to the VE, Ferguson's past relevant work as a personal attendant and housekeeping cleaner was equivalent to light work. R. 229. The ALJ posed three hypotheticals to the VE. R. 230-32. First, the ALJ asked the VE to assume:
R. 230. According to the VE, an individual with such restrictions could not perform Ferguson's past relevant work, but he/she could work as a marker II, a fruit distributor or a plastic hospital products assembler, all jobs available in the national economy. R. 230-31.
Second, the ALJ posed to the VE the same hypothetical but limited the claimant's ability to handling and fingering to only occasionally on the right. R. 231. With that additional restriction, the VE responded that such a person could work as a fruit distributor but not as a marker II or plastic hospital products assembler. R. 231. The VE further opined that this hypothetical person could work at the sedentary level as a surveillance system monitor. R. 231-32.
Finally, in a third hypothetical, the ALJ asked the VE to consider the first hypothetical again, but to assume that claimant is "off task" fifteen percent or more of a workday. R. 232. The ALJ added that such claimant also had two absences a month.
Ferguson's attorney posed two hypotheticals to the VE. R. 235-36. The first hypothetical proposed a person that could not kneel or stoop. R. 235. The VE assessed that marker II, plastic hospital products assembler and fruit distributor would be available jobs for such claimant.
Ferguson filed claims for SSDI and SSI with the SSA on March 18, 2014, asserting that she was unable to work as of August 15, 2013. R. 415. After initial review, her claims were denied on September 24, 2014. R. 314. Her claims were reviewed by a Federal Reviewing Official and again denied on July 23, 2015. R. 322. On September 14, 2015, Ferguson filed a timely request for an ALJ hearing. R. 328. A hearing was held before an ALJ on January 6, 2017. R. 186. In a written decision dated April 24, 2017, the ALJ determined that Ferguson was not disabled and denied her claims. R. 166-79. The Appeals Council considered Ferguson's appeal, but declined to review the ALJ's decision on April 9, 2018. R. 1-4. Ferguson now petitions this Court to reverse and vacate the ALJ's decision, which remains the final decision of the Commissioner. D. 1 at 1-2.
A claimant's entitlement to SSDI and SSI turns in part on whether she has a "disability," defined in the Social Security context as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 416(i), 423(d)(1)(a); 20 C.F.R. § 404.1505. The inability must be severe, rendering the claimant unable to do his or her previous work or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
The Commissioner must follow a five-step process when she determines whether an individual has a disability for Social Security purposes and, thus, whether that individual's application for benefits will be granted. 20 C.F.R. § 416.920. All five steps are not applied to every applicant; the determination may be concluded at any step along the process.
Following the five-step process, at step one, the ALJ found that Ferguson had not engaged in substantial gainful activity since August 15, 2013, the alleged onset date. R. 168. At step two, the ALJ found that Ferguson has the following severe impairments: thyroid disorder, obesity, lumbar degenerative disc disease, bilateral carpal tunnel syndrome status post left release, degenerative joint disease of the left knee, bipolar disorder and generalized anxiety disorder. R. 169. At step three, the ALJ determined that Ferguson did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments ("Listing") in 20 C.F.R. Part 404, Subpart P, Appendix 1.
R. 170. Based on this RFC assessment, the ALJ concluded that Ferguson was not capable of performing any past work. R. 177. At step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Ferguson can perform such as marker II, fruit distributor or plastic hospital products assembler. R. 178. Accordingly, the ALJ concluded that Ferguson was not disabled.
Ferguson contends that the ALJ erred by (1) failing to evaluate a treating source medical opinion and according greater weight to an examining source without explanation; (2) mischaracterizing the record by ignoring evidence opposed to his view; (3) conducting a "Paragraph C"
Ferguson argues that the ALJ neglected to provide an explanation for his failure to evaluate the treating source and did not give any explanation for assigning greater weight to an examining source.
Pursuant to 20 C.F.R. § 404.1527(c)(2), the ALJ is required to give controlling weight to a claimant's treating physician when the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." The ALJ may nevertheless give the treating physician's opinion lesser weight when it is not supported by substantial evidence.
In deciding the proper weight to assign to a treating source opinion, the ALJ is required to consider the length of the treatment relationship, frequency of the examination, nature and extent of the treatment relationship, support of the opinion by medical signs and laboratory findings, consistency of the opinion with the record as a whole, specialization of the treating source and other factors that may support or contradict the medical opinion. 20 C.F.R. § 404.1527(c). The ALJ does not have to consider each fact expressly but must give "good reasons" for the weight afforded to a treating source's medical opinion.
Contrary to Ferguson's contention, the ALJ did weigh Dr. Gagarin's opinion and provided an explanation for the weight he accorded such evidence. R. 175. In deciding the proper weight for Dr. Gagarin's opinion, the ALJ noted that Dr. Gagarin has been Ferguson's treating psychiatrist and has treated her since July 2015. R. 175. Dr. Gagarin saw her once a month during the year of 2016.
The ALJ also explained that opinions "from non-examining and non-treating expert sources" were granted little weight, in accordance with 20 C.F.R. § 404.1527. R. 176. He gave little weight to examining psychiatrist Earbin Stanciell, M.D. because Dr. Stanciell's determination that Ferguson had "mild limitations" in many areas "was not supported by the updated medical evidence."
Ferguson argues that the ALJ ignored evidence opposed to his view, thereby mischaracterizing the record.
Medical opinions are statements made from acceptable medical sources that reflect judgments about the nature and severity of an impairment, including symptoms, diagnosis, prognosis and capabilities.
Here, many of the notes referenced, such as Ferguson's overwhelmed state of mind, R. 799, her tendency to engage in negative self-messaging, R. 1067, and notes of mood swings and staying in bed, R. 1085, 1140, are Ferguson's own description of her own conditions, typically listed under headings such as "[p]atient's report of progress," and do not rise to the level of medical opinion.
Ferguson argues that the ALJ conducted a Paragraph C analysis that was conclusory and rendered judicial review impossible. D. 17 at 11-12. The Paragraph C analysis considers whether a mental disorder is "serious and persistent." 20 C.F.R. Pt. 404, Subpt. P, App. 1;
The ALJ concluded that Ferguson's medical impairments, "considered singly and in combination," did not meet or equal the criteria of Listings 12.04 and 12.06. R. 169. Concerning the Paragraph B criteria for evaluating mental disorders, the ALJ found that Ferguson's mental impairments caused only "mild" limitations in three of the functional areas and "moderate" limitations in the remaining functional areas, R. 169-70, whereas Paragraph B criteria requires either an "extreme" limitation of one of the listed areas of mental functioning or a "marked" limitation of two of the listed areas to meet the level of an impairment. 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ gave support for his decision that the Paragraph C criteria was not satisfied. R. 170. He reported that the record does not establish that Ferguson has minimal capacity to adapt to changes in her life. R. 170. The evidence cited by Ferguson refers to her own account of struggles of adjusting to a new diet, which does not rise to level of medical opinion. R. 1202. The ALJ further concluded that the Paragraph C criteria for evaluating Listings 12.04 and 12.06 mental disorders were not met. R. 170. The ALJ found that the record did not show that Ferguson had a minimal capacity to adapt to changes in her environment and therefore did not have an impairment or combination of impairments that met one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Ferguson argues that the ALJ made a credibility determination that was impermissibly conclusory. D. 17 at 12. She contends that the ALJ discredited her testimony by concluding that her descriptions resulted from self-limitation and that this determination should have been left to experts. D. 17 at 15. She further contends that the ALJ did not identify specific descriptions purported to be inconsistent with the record. D. 17 at 13.
The Court must consider a specific subset of factors when assessing a claimant's subjective complaints of symptoms: 1) the location, duration, frequency and intensity of pain or other symptoms; 2) precipitating and aggravating factors; 3) the type, dosage, effectiveness and side effects of medication; 4) treatment that the claimant has received for pain and symptom relief; 5) functional restrictions and 6) the claimant's daily activities.
An ALJ must evaluate whether there are inconsistencies between the objective medical evidence and the claimant's own statements about his or her symptoms.
The ALJ considered the
The ALJ found that many of Ferguson's "functional limitations are as a result of selflimiting behavior rather than true functional loss resulting from neurological or other physiological compromise." R. 176. Such conclusion conveys that Ferguson's subjective complaints were inconsistent with the medical record.
Ferguson contends that the ALJ failed to support his credibility determination and remaining factual determinations with substantial evidence, including the findings relating directly to her impairments and the decision of the weight afforded to treating source opinions. D. 17 at 18-20.
The ALJ found that given the claimant's age, education, work experience and residual functioning capacity, the claimant can make a successful adjustment to work at jobs that exist in significant numbers in the national economy, R. 178, a finding that was based on substantial evidence in the record.
The ALJ supported his credibility and weight determinations with reference to substantial evidence in the record. For example, he took into account medical notes that document Ferguson feeling better due to her medicine being managed, R. 765, treatment history, including Ferguson's carpal tunnel release surgery, R. 747-48, and medical opinions interpreting x-rays from various sources to show minimal arthritic change, R. 625, 629, 951.
Ferguson submitted new records from NPS and an RFC assessment from Dr. Gagarin after the ALJ hearing. R. 15-162. She argues that the Appeals Council was "egregiously mistaken" in choosing not to consider that evidence because it was new, material and contrary to the weight of the other evidence. D. 21 at 9.
An ALJ's decision "as to any fact," is conclusive if it is grounded in substantial evidence. 42 U.S.C. § 405(g). The Appeals Council generally will not consider evidence in addition to that introduced at the ALJ hearing unless the evidence offered is material to an issue it is considering. 20 C.F.R. § 416.1585. Their refusal to review the ALJ's decision, however, may be reviewable in court when there is an "egregiously mistaken ground" for that action.
The Appeals Council addressed the new evidence proffered by Ferguson that was not in front of the ALJ at the time of the hearing. R. 2. The letter mentioned records from NPS dated from August 12, 2015 to December 22, 2016 and noted that this material is not new, as it is a copy of an exhibit previously provided. R. 2, 185. It also mentioned additional treatment notes from NPS and an RFC from Dr. Gagarin and said that this material did not show a reasonable probability that it would change the outcome of the case. R. 2. Finally, the Appeals Council letter mentioned evidence from NPS dated from April 28, 2017 to June 22, 2017 and said that this material was irrelevant to the period at issue. R. 2. This explanation goes beyond boilerplate language,
Based on the foregoing, the Commissioner's motion to affirm is ALLOWED, D. 18, and Ferguson's motion to reverse, D. 16, is DENIED.
