PAUL BARBADORO, District Judge.
Scott Marshall seeks judicial review of a ruling by the Commissioner of the Social Security Administration ("SSA") denying his application for Disability Insurance Benefits ("DIB"). Marshall claims that the Administrative Law Judge ("ALJ") erred in failing to fully consider all of the evidence. For the following reasons, I affirm the Commissioner's decision.
Marshall applied for DIB on May 25, 2011, claiming that he became disabled on April 1, 2009 due to nerve damage, brain damage, post-concussion syndrome, and depression. Tr. at 198. The SSA denied Marshall's claim on November 3, 2011. Marshall then requested a hearing before an ALJ, which was held on January 30, 2013. Marshall was represented by an attorney and a vocational expert ("VE") testified. On April 19, 2013, the ALJ issued a decision finding that Marshall was not disabled. The Appeals Council denied Marshall's request for review, making the ALJ's decision the final decision of the Commissioner.
In 1998, Marshall underwent surgery to treat a disc herniation
Dr. Anthony R. Marino, an orthopedist, began treating Marshall for his degenerative disc disease and recurrent disc herniation in 1999. That year Marshall underwent a revision discectomy with hemilaminectomy and foraminotomy.
Marshall sought mental health treatment from a psychotherapist from 1991 to 2003. He was prescribed Zoloft and Paxil during this period.
In April 2003, Marshall began to receive treatment from psychiatrist Dr. Marc Sadowsky. He informed Dr. Sadowsky that he had previously been diagnosed with attention deficit disorder ("ADD"). He noted that he had abused drugs and alcohol in the past but had been sober for seventeen years. Among other issues, Marshall reported a decreased appetite, crying spells, decreased libido, anhedonia,
Dr. Sadowsky treated Marshall approximately once every one to two months for the following ten years. During this time Marshall alternated between reporting that things were "going well" and that he was a "tortured soul." At various points, he described his mood as "improved," "somewhat better," "fairly stable," "down," "in a significant `funk'" "variab[le]," "depressed," and "despondent." He reported that his history of concussions, many accompanied by a loss of consciousness, had contributed to mood variability and balance difficulties. In 2003 Marshall reported "increasing anxiety" and irritability, but by 2010 he denied significant difficulties with these issues. He reported suicidal ideation without a current plan or intent in both 2003 and 2011 and reported stress due to an unstable living situation between 2010 and 2012. Marshall reported in 2003 that his memory was "terrible," described it as "variable" in 2010, and noted in 2012 that his memory had improved since he began taking Huperzine A.
Marshall noted at various office visits that his energy was "increased," "decreased," and "okay"; that his concentration was "decreased," "okay," and "variable"; and that he had "an inability to focus" which was "improved," "decreased," and "better" over time. He reported "racing thoughts" on one occasion. Marshall frequently reported "significant" or "episodic" sleep difficulties and "difficulty falling asleep and mid-night awakening." He stated that he had "not been sleeping well," "did not sleep for four nights" on one occasion, took Trazodone
Marshall initially reported that he was "not able to work on a regular basis," had "decreased" motivation, and was "having difficulties getting out of bed." In contrast, between 2009 and 2012 Marshall consistently noted that he was "working on his used book business[] and doing some writing," which "seemed to be going fairly well for him" and "helped his demeanor." By August 2012, Marshall reported improved self-esteem and noted that he was socializing. Between 2011 and 2012, Marshall began taking Risperidone and Gabapentin,
Dr. Sadowsky described Marshall's affect at various times as "anxious," "subdued," "calm," "euthymic," and "pressured"; his mood as "anxious," "improving," "okay," "variable . . . angry at times," "despondent," "depressed," "good," and "better"; his concentration and energy as "okay except when he is dealing with pain," "variable, depending on the amount of sleep," "fair," "better," "varied," and "decreased"; his motivation as "variable"; his sleep as "disturbed" and "variable with occasional mid-night awakening"; and his memory as "impaired," "normal," and "better." Dr. Sadowsky noted Marshall's "very limited" stress reaction that may contribute to his difficulties focusing. At various times, Dr. Sadowsky observed Marshall's irritability, racing thoughts, and pressured speech. He noted on certain occasions that Marshall was either not suicidal or having fleeting thoughts of suicide. Dr. Sadowsky filled out a Family Medical Leave Act form in 2007 in response to Marshall's reports that he could not work and recommended that he see a neurologist in 2012. He also observed that Marshall was losing weight in 2012.
In June 2011, Dr. Sadowsky noted Marshall's diagnosis of major depressive disorder, recurrent episode, in partial or unspecified remission.
Dr. Quirbach has been Marshall's PCP for over twenty years, but the record primarily documents their treatment relationship from 2009 to 2012 when Marshall visited Dr. Quirbach approximately once a month. In May 2009, Dr. Quirbach noted that Marshall was doing well and had lost weight due to taking Zyprexa. He prescribed Ritalin
Marshall reported at various times that he was "very optimistic that he is doing well," had "no complaints," was "doing better with his business," was continuing to write novels, hoped to travel, and did not require pain medication. At other times, Marshall informed Dr. Quirbach that it felt "like his hand is in a vice," likened the pain to a fractured wrist, and reported "almost unbearable" back pain making it difficult for him to sit.
Dr. Quirbach reported that Marshall had good motor strength in his left arm and a full range of motion of all joints in the extremities, but also noted limping, decreased range of motion and swelling of the spine, positive bilateral straight leg raises, and an episode of ataxia.
Marshall also reported short-term memory problems to Dr. Quirbach, who occasionally noted that Marshall was on edge, not himself, crying, anxious, hyperactive, and agitated. In March 2013, Dr. Quirbach noted "increased anxiety related to [Marshall's] poor financial situation." He ordered a brain MRI that, according to neurologist Dr. Deborah Berger, showed white matter lesions potentially consistent with early small vessel ischemia or a demyelinating disease such as multiple sclerosis.
In July 2012 and February 2013, Dr. Quirbach opined that Marshall could lift and carry no more than ten pounds; could stand and/or walk less than two hours in an eight-hour day; could sit less than six hours in an eight-hour day; needed to periodically alternate sitting and standing; had diffuse pain, limited range of motion, and limited pushing and pulling abilities in both his upper and lower extremities due to weakness in his lower spine and a "dysfunctional" left arm; could never climb ramps, stairs, ladders, ropes, or scaffolds; could never balance or crawl; could occasionally kneel, crouch, stoop, reach, and handle; could frequently feel; had unlimited fingering abilities; could tolerate limited exposure to noise, dust, vibration, fumes, odors, chemical, and gases; needed to avoid humidity, wetness, extreme cold, and hazards such as heights; would need to be able to take unscheduled breaks to relieve pain or discomfort; would be capable of gainful employment on a sustained basis only in a "very controlled environment"; and would be likely to be absent from work more than four times per month. He also noted that Marshall had "episodic mood disorder" and "reduced intellectual functioning" due to multiple head traumas. According to Dr. Quirbach, these impairments caused Marshall to have difficulty at least one third of the time in completing tasks and activities of daily living, tolerating stresses common to a work setting, working in coordination with or proximity to others without being distracted, adapting to changes in the work setting, and performing at a consistent pace. He noted that Marshall would have difficulty maintaining attendance and a schedule most of the time and stated that Marshall experienced episodes of decompensation when under stress that lasted at least two weeks four or more times a year. Dr. Quirbach opined that Marshall's mood swings and sleep problems would "make regular work impossible" and concluded that Marshall's functional limitations satisfied the SSA's definition of disability.
In September 2010, Marshall visited the emergency room for aggravated left hand and elbow pain. The examining physician noted that Marshall had walked to the facility and appeared "quite anxious and uncomfortable due to the pain." Some wasting of the muscles of the left hand was observed, but finger and joint movement was normal. The physician noted exacerbation of neuropathic pain of the left upper extremity due to ulnar nerve entrapment. He prescribed Toradol
In November 2011, Marshall returned to the emergency room reporting pain in his right foot after slipping on ice. An xray showed no evidence of fracture. The examining physician detected slight tenderness and swelling, assessed "right toe contusion versus neuralgia pain,"
In November 2012, Marshall returned to the emergency room complaining of severe chronic pain due to neuropathies. The examining physician observed that Marshall appeared very anxious, noted his past surgeries, chronic pain, hypertension, and generalized anxiety, and assessed chronic post-surgical pain and myofascial pain syndrome.
On November 10, 2011, Marshall visited neurologist Dr. John Rescigno for a neurological consultation. Marshall reported that he had suffered a number of seizures in 1994 due to head trauma and substance abuse. He noted more recent headaches, memory problems, distractibility, infrequent left/right confusion, chronic pain, and insomnia that was being treated ineffectively with Trazodone. Dr. Rescigno observed that Marshall was alert, fully oriented, and exhibited normal language, praxis, attention span, memory, fund of knowledge, strength, reflexes, sensation in all body regions, cerebellar presentation, and Romberg's test.
Dr. Rescigno concluded that the MRI findings were not relevant to Marshall's presentation and that his symptoms were not necessarily attributable to any particular disease. He noted that the "modest abnormalities" on Marshall's brain MRI could represent cerebrovascular disease but were also consistent with a history of migraines. He stated that it was "impossible to say" whether any of Marshall's symptoms were related to head injuries and that his memory problems appeared "more like difficulties with focus and concentration" and were "nonspecific for any one disease entity." Dr. Rescigno opined that Marshall's poor sleep and tiredness during the day were consistent with his focus and memory problems. He prescribed Neurontin and recommended that Marshall undergo further diagnostic imaging to monitor for future progression.
In September 2011, consultative psychologist Dr. Evelyn Harriott examined Marshall. Marshall denied hallucinations, delusions, misinterpretations, preoccupations, obsessions, phobic ideas, or current homicidal or suicidal ideation. He reported irregular sleep patterns that prevented him from following a regular schedule, daily ten to fifteen minute long memory lapses, and weight loss due to stress. He also reported a history of suicidal thoughts, but noted that his daughter and cat kept him going. Marshall stated that he read, watched television, talked on the phone to booksellers and customers, prepared meals, walked or drove to town to buy groceries and perform errands, completed household chores, and cared for his cat. Marshall reported that he sometimes functioned at "100%" but at other times would "just hit a wall."
Dr. Harriott listed Marshall's diagnoses as attention deficit hyperactivity disorder, predominantly inattentive; bipolar disorder not otherwise specified; and cognitive disorder not otherwise specified.
On November 3, 2011, non-examining state agency psychologist Dr. William Jamieson reviewed the available record and described Marshall's mental impairments as "organic mental disorder" and "affective disorders."
That same day, non-examining state agency physician Dr. Hugh Fairley reviewed the available evidence and determined that Marshall's severe physical impairments were "myoneural disorders" and "cerebral trauma." He opined that Marshall could lift ten pounds frequently and twenty-five pounds occasionally; could sit, stand, or walk for a total of six hours in an eighthour day; could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; could never climb ladders, ropes, or scaffolds; and must avoid exposure to hazards and heights. He explained that these limitations were due to Marshall's history of episodic sciatica and imbalance. Dr. Fairley also opined that Marshall, who is right-handed, should avoid frequent fine manipulation with his left hand due to left carpal tunnel syndrome and ulnar neuropathy.
Marshall filled out a function report in July 2011, stating that on a typical day he ate breakfast, went for a walk, took care of his cat, wrote, tried to read, watched television, cooked for between fifteen minutes and two hours, and slept for periods no longer than forty-five minutes, which caused his schedule to be "basically non-existent." He did laundry weekly, attended Alcoholics Anonymous meetings three to four times a week, saw friends occasionally, rarely vacuumed due to back pain, cleaned "whenever," traveled independently by walking or driving, and shopped for groceries when necessary. He was usually able to handle stress fairly well and got along fine with authority figures. In contrast, he was sometimes unable to focus when reading or writing, tended to get confused by written instructions, easily forgot spoken instructions, sometimes forgot the next step while cooking, did not go out much, had problems getting along with family members other than his daughter, was unable to work due to "mobility/balance issues, headaches, lack of focus, etc.," and often fell due to his brain damage. Marshall also reported that nerve damage to his left hand limited "much physical stuff," that he frequently used a cane and splint or brace on his left hand, and that he had difficulty lifting things, climbing stairs, balancing, remembering, and concentrating.
Around the same time, Marshall's adult daughter described him as having "extreme issues with focus, balance, confusion and depression." She noted that he "forgets things and is easily confused," "gets distracted," "never sleeps through the night," and often becomes "delerious [sic] from lack of sleep." She reported that he took longer "than it should" to do household chores, needed reminders, and was unable to do yard work due to balance issues that required him to use a cane, brace, or splint. She wrote that he had cared for her in the past, but they had since undergone a role "reversal" where she was "the parent who cares for him" and therefore spent four hours a day looking after him.
Marshall was granted permission to stand during his testimony. He stated that he had organic brain syndrome due to a history of nineteen concussions, many resulting in a loss of consciousness, that were incurred while playing hockey, boxing, and getting into fights in which he was hit with baseball bats and tire jacks. He also noted that he had been diagnosed with degenerative cerebellum disease in 1986. He testified that he frequently could not remember what he did the day or week before, could not place when events or conversations had happened, and did not have "time recall." He stated that his "cerebellum sometimes doesn't work" and repeatedly told the ALJ that he had forgotten what he had just been talking about.
Marshall testified that he gets frequent migraines that are treated with a variety of medications, including Dilaudid. Dilaudid was sometimes helpful, but it occasionally made him "loopy" or "fuzzy" such that he could not drive. Marshall reported that his headaches had become more frequent since the "damage got worse in [his] brain" and he "started falling all the time" without warning. He stated that he had decided to undergo a diagnostic study of his brain following an incident in which he kept falling down for four hours and was unable to regain his balance or stand up. He noted that his balance had been suspect ever since this episode.
Marshall testified that he had a mood disorder "like . . . bipolar disease" in which he sometimes felt capable of functioning and sometimes went "into this abyss for two or three weeks at a time" and did not do anything. Marshall testified that he had thoughts of death but his daughter kept him from committing suicide. He testified that Dr. Sadowsky had taken him off anti-depressants when he was diagnosed with brain damage and that he had been "suicidal all the time until the meds started to work a little bit, mid-late last year." Marshall reported occasional confusion while completing simple tasks, causing him to start crying and "lose it" for twenty to twenty-five minutes. He described problems with anger and anxiety that affected his sleep and testified that migraine headaches, depression, confusion, and inability to focus had worsened to the point where he could not work, which he found embarrassing.
Marshall described issues with his elbow, right wrist, nerve damage, and associated chronic pain that had occurred for many years. He reported having undergone fourteen surgeries since 1988, including four shoulder surgeries, three lower back surgeries, and a left knee surgery. Marshall testified to worsening back pain since his last surgery and "really bad" sciatica in both legs extending down to his ankles because there was a "hole in [his] spine." He could not sit, walk, or do anything other than lie down, sometimes felt "pins and needles," and often needed to put hot or cold packs on his back. Marshall also reported an impinged ulnar nerve in his left elbow, nerve damage in his left wrist and hand which caused "excruciating" pain, and two torn tendons in his left rotator cuff. Marshall testified that he had been told that he had a fifty percent chance of repairing the damage in his left hand. He had to wear a glove with a heating pad because he could not let his hand get cold. Marshall added that he has right hip pain, chest and neck pain due to arthritis, injuries to his sternum, hyperinsulinism
Marshall testified that his typical day depended on his previous day and night's sleep. He was currently living by himself but had recently been homeless, lived in his car, and lived with family and friends for periods when he was not able to care for himself. He could open a can of soup, feed his cat, watch television, listen to music, and volunteer with youth and local police departments.
Marshall noted that he had not done any housework in three years and had not completed any writing in two and a half years because he cannot concentrate. He drove for two hours and ten minutes to attend the hearing but clarified that he could not drive all the time. He testified that his wife had left in 2007 because she "didn't want to deal with [his] issues anymore." He had not been able to work since he experienced a "psychotic break" in April 2009.
The VE noted that Marshall had past jobs as a computer technician, retail salesperson, archive specialist/news librarian, book salesperson, and part-time writer, but Marshall clarified that he had earned no money in the latter two jobs. The VE testified that a hypothetical individual who could lift ten pounds frequently and twenty-five pounds occasionally; could sit, stand, or walk for a total of six hours each in an eighthour day; could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; could never climb ladders, ropes, or scaffolds; needed to avoid frequent fine manipulation with his left hand; and also needed to avoid all exposure to hazards and heights, could still perform the jobs of retail salesperson and news librarian. The VE next testified that a hypothetical individual with limitations similar to those above except that he could lift no more than ten pounds; could stand and/or walk for a total of two hours with an option to alternate sitting and standing; could push and pull only occasionally; could occasionally reach, handle, finger, and feel with his right upper extremity with no limitation in the left; and needed to limit his exposure to various environmental conditions, would not be able to perform any of Marshall's prior jobs but could work as a sorter, appointment clerk, or information clerk. The VE clarified that her response was not based on the Dictionary of Occupational Titles, but rather on her own knowledge that these positions would permit an individual to work seated or standing with unlimited use of the left upper extremity. Marshall's attorney then asked the VE to assume a hypothetical individual with the physical functional limitations described by Dr. Quirbach. The VE testified that these limitations would preclude all work, as typical employers will only tolerate up to one absence per month.
In his decision dated April 19, 2013, the ALJ conducted the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520(a)(4) to determine whether an individual is disabled. Tr. at 14-25. At step one, the ALJ found that Marshall had not engaged in substantial gainful activity from his alleged onset date, April 1, 2009, through his date last insured ("DLI"), December 31, 2012. At step two, he found that Marshall suffered from the severe impairments of myoneural disorder and cerebral trauma. The ALJ concluded at step three that, through his DLI, Marshall 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. pt. 404, subpt. P, appx. 1. The ALJ then found that Marshall had the residual functional capacity ("RFC") to:
The ALJ found at step four that, prior to his DLI, Marshall's RFC permitted him to perform past relevant work as a retail salesperson and news librarian. The ALJ thus determined that Marshall had not been disabled as defined in the Social Security Act during the relevant period.
Under 42 U.S.C. § 405(g), I must review the pleadings and administrative record and enter a judgment affirming, modifying, or reversing the final decision of the Commissioner. My review "is limited to determining whether the ALJ used the proper legal standards and found facts [based] upon the proper quantum of evidence."
Marshall maintains that the ALJ made numerous reversible errors at steps three and four of the sequential evaluation process.
Marshall first claims that the ALJ did not adequately evaluate his history of cerebral trauma because he failed to consider its effects under listing 12.02, which concerns "organic mental disorders."
Marshall next contends that the ALJ's step three findings — consisting of two sentences lacking any independent analysis or reference to the record — are unsupported by substantial evidence. The ALJ's findings are essentially a verbatim recitation of listing 11.04 (which, as noted above, is incorporated by reference in listing 11.18):
Tr. at 20. Viewed in isolation, these findings would be insufficient.
The ALJ concluded that "[t]hese treatment notes do not reflect functional deficits consistent with the claimant's allegations. . . . He . . . has a history of cerebral trauma, but does not consistently document neurological deficit."
Marshall initially attacks the ALJ's step four determination on the grounds that it "contain[s] no analysis of the medical record related to `myoneural disorder'" — an impairment that his "treating physicians did not diagnose him" with. Doc. No. 12-1. Marshall contends that "[i]t is entirely unclear how the administrative record supports the diagnosis of `myoneural disorder'" or its "limiting effects" on his RFC.
A myoneural disorder "[r]elat[es] to both muscle and nerve."
Marshall next argues that the ALJ did not adequately consider all of his medically determinable impairments at step four. I disagree. Throughout his decision,
Next, Marshall contends that the ALJ erred by not applying the SSA's special psychiatric technique to analyze his mental impairments.
The ALJ permissibly found at step two that Marshall's mental impairments impose "no more than a mild limitation" with respect to activities of daily living; social functioning; and concentration, persistence, or pace. Tr. at 17. He found that Marshall "has experienced no episodes of decompensation of extended duration" and his "organic mental disorder and affective disorder did not cause more than minimal limitation in [his] ability to perform basic mental work activities."
The decision also indicates that the ALJ engaged in a "more detailed assessment" when crafting his RFC "by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings . . . ."
Marshall also alleges that the ALJ ignored significant evidence from his daughter's function report,
Finally, Marshall contends that the ALJ erred by failing to give Dr. Quirbach's opinion controlling weight.
Here, the ALJ permissibly concluded that Dr. Quirbach's opinion was "not well supported by or consistent with the evidence of record," explaining that:
Tr. at 24. This thorough assessment provides a number of "good reasons" for the ALJ's decision to accord little weight to Dr. Quirbach's opinion and indicates sufficient consideration of the factors that must be evaluated before reaching that conclusion.
The ALJ was equally justified in according substantial weight to Dr. Fairley's opinion, noting that:
Tr. at 24. Again, this demonstrates sufficient consideration of the factors enumerated in 20 C.F.R. § 404.1527(c)(2-6).
For the reasons discussed above, I deny Marshall's motion to reverse, Doc. No. 12, and grant the Commissioner's motion to affirm. Doc. No. 14. The clerk is directed to enter judgment accordingly and close the case.
SO ORDERED.