JOHN A. ROSS, District Judge.
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security's final decision denying David Gray's ("Gray") applications for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1381-85.
Gray filed his applications for disability insurance benefits and supplemental security income on October 21, 2010, and December 15, 2010, respectively. (Tr. 106-07) The Social Security Administration ("SSA") denied Gray's applications on April 18, 2011. (Tr. 106-13) He filed a timely request for a hearing before an administrative law judge ("ALJ") on April 26, 2011. (Tr. 114-15) Following a hearing, the ALJ issued a written decision on March 7, 2013, upholding the denial of benefits. (Tr. 17-38) Gray requested review of the ALJ's decision by the Appeals Council. (Tr. 15-16) On February 25, 2014, the Appeals Council denied Gray's request for review. (Tr. 1-6) Thus, the decision of the ALJ stands as the final decision of the Commissioner.
Gray filed this appeal on April 28, 2014. (Doc. 1) The Commissioner filed an Answer. (Doc. 7) Gray filed a Brief in Support of his Complaint. (Doc. 11) The Commissioner filed a Brief in Support of the Answer. (Doc. 16)
The ALJ determined that Gray meets the insured status requirements of the Social Security Act through March 31, 2015, and had not engaged in substantial gainful activity since September 30, 2010, the alleged onset date of disability. (Tr. 22) The ALJ found Gray has the severe impairments of status-post right hip surgery, bipolar disorder, stress disorder, depressive disorder, post-traumatic stress disorder, and polysubstance abuse but that no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 23)
After considering the entire record, the ALJ determined Gray has the residual functional capacity ("RFC") to perform light work except that he should avoid ropes, ladders, and scaffolds. (Tr. 25) Further, Gray should avoid hazardous heights and extremes of heat (
The following is a summary of the relevant evidence before the ALJ.
The ALJ held a hearing in this matter on July 17, 2012, and a supplemental hearing on January 29, 2014. The ALJ heard testimony from Gray and Gerald Belchick, a vocational expert. (Tr. 39-105)
At the time of the first hearing, Gray was living with his wife and his four children. (Tr. 60) His children were 2, 4, 9, and 13 years old. (
Prior to his motor vehicle accident in November 2008, Gray assisted his family in some farming activities. (Tr. 61-64) However, Gray did not receive any earnings from the farming nor did he report it as work on his work history report. (Tr. 63) He worked as a valet parking attendant at Larkin Parking, as a dismantler at Craig Automotive, as an apartment maintenance man, and as an assembly worker for Paramount Headwear. (Tr. 64-65) Gray also worked as a carpenter for Harsco Corporation, Sunrise Building Company, and McBride and Son Management Company. (Tr. 65-66) For roughly four months, Gray additionally worked as a filing clerk at Atlas Reserve Temporaries. (Tr. 64, 73) Because Gray accumulated total earnings of $2,736 at that job, which is under Substantial Gainful Activity, counsel requested that the ALJ not consider it under past relevant work. (Tr. 73)
Gray's counsel indicated that Gray's non-exertional health problems are major depressive disorder, posttraumatic stress disorder, and anxiety disorder. (Tr. 69) Gray also suffered a heat stroke in 2010 resulting in complaints of cognitive difficulty and some memory difficulty. (
On the exertional side, counsel stated that Gray is dealing with a traumatic hip injury that occurred as a result of a motor vehicle accident in November 2008. (Tr. 69) As for the thencurrent status of the hip, counsel indicated that Gray was post open reduction internal fixation and that post-imaging has shown a screw in the sciatic notch irritating the nerve. (
Gray testified that he used marijuana about a year prior to the first hearing and that he had been addicted to Percocet. (Tr. 68, 75)
Vocational expert, Gerald Belchick, testified regarding Gray's vocational history as follows. Gray has been a carpenter or a home builder, code 860.381-022, with a specific vocational preparation ("SVP") of 7 and classified by the Dictionary of Occupational Titles ("DOT") as medium work. (Tr. 101-02) He also worked as a dismantler in an auto shop/junk yard, code 929.687-022, with an SVP of 2 and classified as medium work, as an apartment maintenance person, code 899.381-010, with an SVP of 7, classified as medium work, as a file clerk, code 206.367-014, with an SVP of 2, classified as light work, in a valet parking garage, code 915.473-010, with an SVP of 2, classified as light work, as a farmer, code 421.687-010, with an SVP of 2, classified as medium work, in a customer service job, code 299.367-010, with an SVP of 3, classified as light work, and in production assembly, code 706.687-010, with an SVP of 2, classified as light work. (Tr. 102-03)
For hypothetical one, the ALJ asked Belchick to assume a person limited to light, unskilled work who should avoid ropes, ladders, scaffolding, hazardous heights, and extremes in heat. (Tr. 103) Belchick testified that Gray could return to his past relevant work as an assembler/hat decorator, as a filing clerk, and in the car part job. (
A supplemental hearing was held on January 29, 2014, to allow for additional testimony from Belchick, the vocational expert. At the supplemental hearing Belchick addressed Gray's previous work as a farmer, indicating it has a code of 860.381-022, with an SVP of 7, and classified as medium work. (Tr. 45) The ALJ again asked Belchick to assume a person limited to light, unskilled work who should avoid ropes, ladders, scaffolding, hazardous heights, and extremes in heat. (
The ALJ then asked the VE whether a hypothetical individual with the same education, vocational background, and residual functional capacity as Gray had the ability to perform at least three other additional jobs that exist in significant numbers on a regional and national level. (Tr. 45-46). Belchick testified that such a person would be able to perform a job such as unarmed security guard, code 372.667-030, SVP of 2, light, unskilled work. There are 1,200 such positions locally and 81,000 positions nationally. (Tr. 46) In addition, such a person could perform the job of cleaner, code 301.474.010, SVP of 2, light, unskilled. There are 6,000 such positions locally and 420,000 nationally. (Tr. 46-47) Finally, there is an information clerk position that a person could do, code 237.367-018, SVP of 2, light, unskilled. There are 1,100 such positions locally and 72,000 nationally. (Tr. 47)
Gray's attorney asked Belchick how his opinion would be impacted if he took the first hypothetical and included the limitation of a person who could never be in the seated or standing position for longer than 15 minutes or, in other words, required alteration every 15 minutes. (Tr. 48) Belchick responded that this limitation would eliminate all of the jobs he mentioned. (
In the supplemental hearing, Gray additionally testified that he worked as a residential tree climber for Clayton's Tree Service. (Tr. 52) Gray indicated that he apprenticed to learn the trade and that it is a high skill set job. (Tr. 52-53) Belchick testified that the DOT code for that job is 408.664-010, with an SVP of 4, and classified as heavy work. (Tr. 53)
The ALJ summarized Gray's medical records at Tr. 25-31. Relevant medical records are discussed as part of the analysis.
The Social Security Act defines as disabled a person who is "unable 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A);
Under the Social Security Act, the Commissioner has established a five-step process for determining whether a person is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). "If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is determined to be not disabled."
Third, the claimant must establish that his or her impairment meets or equals an impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is per se disabled without consideration of the claimant's age, education, or work history.
Before considering step four, the ALJ must determine the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as "the most a claimant can do despite [his] limitations."
At step five, the ALJ considers the claimant's RFC, age, education, and work experience to see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R. §§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the burden remains with the claimant to prove that he is disabled.
The court's role on judicial review is to determine whether the ALJ's findings are supported by substantial evidence in the record as a whole.
To determine whether the ALJ's final decision is supported by substantial evidence, the Court is required to review the administrative record as a whole and to consider:
In his appeal of the Commissioner's decision, Gray raises three issues. First, Gray asserts that the ALJ failed to properly weigh the medical evidence. (Doc. 11 at 11-20) Second, Gray argues that the ALJ failed to properly evaluate Gray's credibility. (
Gray asserts that the ALJ failed to properly weigh the treating source opinions of Dr. Jennifer Barbin ("Dr. Barbin"), his treating physician; Dr. Heather Hill ("Dr. Hill"), his treating psychiatrist; and Ms. Marilyn Coffman, LPC, MA ("Ms. Coffman"), his treating therapist. Gray also appears to dispute the ALJ's finding giving "great weight" to the opinion of Terry Dunn, Ph.D. ("Dr. Dunn"), the state agency psychiatric consultant.
A treating physician's opinion is generally entitled to substantial weight but does not automatically control.
Therapists, on the other hand, are not medical sources as defined by the Regulations.
First, Gray asserts that the ALJ failed to properly weigh the treating source opinion of Dr. Barbin. At issue is Dr. Barbin's opinion reported in a Multiple Impairment Questionnaire dated September 28, 2011. (Tr. 375-82) In the Questionnaire, Dr. Barbin concluded that Gray can only sit or stand/walk for a maximum of 1 hour and is unable to lift or carry more than 20lbs. (Tr. 377-378) Dr. Barbin further opined that Gray has marked limitation grasping, turning, twisting objects with his left hand, marked limitation using his fingers/hands for fine manipulations on his left hand, and moderate limitations using his fingers/hands for fine manipulations on his right hand. (Tr. 378-379) Dr. Barbin additionally reported that Gray would need to take breaks of half an hour or longer, several times an hour. (Tr. 380) Dr. Barbin also indicated that Gray would need to avoid temperature extremes, need to avoid humidity, need to avoid heights, and could not engage in pushing, pulling, kneeling, bending, or stooping. (Tr. 381). Dr. Barbin noted that Gray's experience of pain constantly interferes with his attention and concentration. (Tr. 380)
The Court finds that the ALJ properly evaluated Dr. Barbin's opinions, listing "good reasons" for giving them little weight.
Additionally, the ALJ indicated that Dr. Barbin stated that her opinion was based on Gray's subjective report, rather than her independent medical analysis. (Tr. 30) Although Gray asserts that Dr. Barbin indicated that her opinions were supported by radiographic studies (Tr. 375-376), neither Gray nor Dr. Barbin indicate which studies support these extreme limitations. In fact, Dr. Barbin's opinion does not appear to be supported by the medical evidence. (Tr. 28-30, 385, 399, 403, 405-406, 414, 441-445, 450). Furthermore, an ALJ can give less weight to medical opinion because it appears to be based solely on claimant' subjective complaints.
Finally, although the ALJ did not explicitly cite to any evidence contradicting Dr. Barbin's opinion in that portion of the opinion wherein she addresses the weight given to Dr. Barbin's opinion, the ALJ presented a lengthy review of the medical evidence regarding Gray's physical impairments elsewhere in the opinion (Tr. 28) and it is Gray's burden to provide the medical evidence to establish disability, not the ALJ's.
Next, Gray asserts that the ALJ failed to properly weigh the treating source opinion of Dr. Hill, his treating psychiatrist. Dr. Hill diagnosed Gray with bipolar disorder, post-traumatic stress disorder, and a cognitive disorder secondary to head trauma. (Tr. 801) Dr. Hill assigned Gray a global assessment of functioning ("GAF") score of 60.
The Court concludes the ALJ properly evaluated Dr. Hill's opinions, listing "good reasons" for giving them little weight.
Gray also asserts that the ALJ failed to properly weigh the opinion of Ms. Coffman, his treating therapist. Ms. Coffman completed a Psychiatric/Psychological Impairment Questionnaire. In the Questionnaire, Ms. Coffman opined that Gray is markedly limited in his ability to understand and remember detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to complete a normal workweek without interruptions; and the ability to interact appropriately with the general public. (Tr. 296-297) Ms. Coffman also provided a letter to the Commissioner in which she indicated that Gray "has a low frustration tolerance level" and "[h]is level of stress is always high." (Tr. 302) As a result of these attributes, Ms. Coffman reported that Gray "is prone to display behavior that is not customary for him" specifically, "angry outbursts." (
The Court finds that the ALJ properly evaluated Ms. Coffman's opinions. Specifically, the ALJ indicated that Ms. Coffman only examined Gray for a total of six hours. (Tr. 30, 302) Further, in addition to commenting on Gray's mental limitations, Ms. Coffman addressed Gray's physical limitations and, as the ALJ noted, Ms. Coffman has no expertise on which to base her statements. (Tr. 30, 302) Finally, as previously addressed, the ALJ provided a detailed analysis of the medical record as it related to Gray's mental impairment and this analysis further supports the ALJ's decision to discount the opinions of Ms. Coffman. (Tr. 24, 28-31)
Finally, to the extent that Gray asserts that the ALJ inappropriately relied on the opinion evidence of Dr. Dunn to formulate Gray's RFC, the Court finds this argument unpersuasive. Dr. Dunn opined that Gray did not have any restrictions in the activities of daily living, in social functioning, or in his ability to maintain concentration, persistence, or pace. (Tr. 29, 371) While the ALJ afforded Dr. Dunn's opinion "great weight," the ALJ's determined RFC clearly limited Gray beyond that which the opinion of Dr. Dunn would suggest, therefore indicating that the ALJ took into consideration the medical records and the opinions of Dr. Barbin, Dr. Hill, and Ms. Coffman in formulating the RFC. Importantly, assigning a medical opinion or other source opinion "little weight" is not the same as assigning that same opinion "no weight." Further, as the Court previously addressed, the ALJ gave good reasons for the weight she afforded these sources and, as the Court will address, the ALJ properly discounted Gray's subjective complaints. Accordingly, the Court finds no merit in Gray's argument that the ALJ improperly relied on the opinion evidence of Dr. Dunn.
In sum, the Court finds the ALJ's treatment of the medical opinion evidence is supported by valid reasons and substantial evidence in the record as a whole.
Gray next argues the ALJ erred in his credibility evaluation and RFC determination by finding that his activities of daily living were inconsistent with his claims of disability. (Doc. 11 at 20-24) Deference is given to the ALJ's conclusion with regard to credibility determinations.
In evaluating a claimant's credibility, the ALJ should consider the claimant's daily activities; the duration, frequency, and intensity of the symptoms; precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and functional restrictions.
The ALJ determined that "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." (Tr. 27) In so-doing, the ALJ noted that there were several indications in the record that the claimant's functional limitations may not be as severe as alleged. Specifically, the ALJ found, "[a]s discussed above on page four, the claimant engages in extensive activities, including social activities and activities of daily living, that require substantial concentration, persistence and pace." (
To be sure, there are cases in which a claimant's ability to engage in certain personal activities "does not constitute substantial evidence that he or she has the functional capacity to engage in substantial gainful activity."
Finally, Gray asserts that the ALJ relied on flawed vocational expert testimony. Gray argues that the ALJ's RFC was based on improper consideration of the relevant medical opinions in the record and an incomplete evaluation of Gray's credibility. Gray additionally asserts that the ALJ failed to rely on a hypothetical question to the VE that accurately described all the mental limitations the ALJ conceded were documented by the record. Specifically, Gray argues that the ALJ found that Gray has moderate difficulties in concentration, persistence, or pace but then only restricted Gray to unskilled work in her RFC determination and in the hypothetical the ALJ gave to the VE.
"To constitute substantial evidence, a hypothetical must set forth the impairments accepted as true by the ALJ."
(
Accordingly, because substantial evidence shows Gray's limitations in concentration, persistence, or pace did not impose limitations beyond the performance of unskilled work, the ALJ did not err in her RFC determination or in her hypothetical to the vocational expert that included only this relevant limitation
For the foregoing reasons, the Court finds the ALJ's decision is supported by substantial evidence contained in the record as a whole, and, therefore, the Commissioner's decision should be affirmed.
Accordingly,
A separate Judgment will accompany this Order.