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Clemins v. Astrue

United States District Court, Western District of Virginia, Harrisonburg Division

June 26, 2014

CALVIN E. CLEMINS, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

Joel C. Hoppe United States Magistrate Judge

Plaintiff Calvin E. Clemins brought this action for review of the Commissioner of Social Security’s (“Commissioner”) decision denying his claim for disability insurance benefits (DIB) and supplemental security income (SSI) under Title II of the Social Security Act (the “Act”). On appeal, Clemins argues that the Commissioner erred in failing to find that he met or equaled a listing, in assessing his residual functional capacity (“RFC”), and in failing to consider the opinion of vocational expert Benson Heckler. The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), and this case is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). After carefully reviewing the record, I find that the decision of the Administrative Law Judge (“ALJ”) was based on substantial evidence and recommend that the Commissioner’s decision be affirmed.

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner’s final determination that a person is not entitled to disability benefits. See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether substantial evidence supports the ALJ’s factual findings and whether the ALJ applied the correct legal standards. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, ” id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487–89 (1951). Ultimately, this Court must affirm the ALJ’s factual findings if “‘conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.’” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks omitted)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

A person is “disabled” if he or she is unable 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act’s regulations; (4) can return to her past relevant work based on his or her residual functional capacity; and if not (5) whether he or she can perform other work. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460–462 (1983). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.

II. Procedural History

Clemins was born in 1964 (Administrative Record, hereinafter “R.” 45), and at the time of the ALJ’s decision was considered a “younger individual” under the Act. 20 C.F.R. §§ 404.1563(b), 416.963(b). He completed the tenth grade and is able to read and write. (R. 119, 126.) He has worked in the textile industry, as a sander for a furniture manufacturer, and most recently as a rubber chop operator. (R. 121, 1130.) He alleges that he has been disabled since August 29, 2006, when he left his job as a rubber chop operator. (R. 20, 120, 1141.)

Clemins filed a previous application for disability insurance benefits on September 8, 2006, which was denied initially, on reconsideration, and in an ALJ decision after hearing dated September 9, 2009. (R. 978–88.) On February 25, 2010, the Appeals Council declined to review the prior ALJ decision, and Clemins did not seek review in federal court.[1] (R. 989–91.)

Clemins filed new applications for SSI and DIB in April 2010. (R. 1088–1107.) These, too, were denied both initially (R. 992–1021) and on reconsideration (R. 1022–1053). At Clemins’s request, the Commissioner convened a hearing before an ALJ on August 17, 2011. (R. 1848–1884.) Clemins was represented by counsel at the hearing, where he and a vocational expert testified. (R. 1848–1884.)

On November 2, 2011, the ALJ issued his decision finding Clemins not disabled and denying him benefits. The ALJ found that Clemins had “the following severe combination of impairments: posttraumatic stress disorder, carpal tunnel syndrome, chronic obstructive pulmonary disease, anxiety, disorders of the spine, obesity, and personality disorder.” (R. 22.) The ALJ found that Clemins’s other claimed impairments, including sleep apnea, chest pains, gastroesophageal reflux disease, arthritis, headaches, hepatitis C, fibromyalgia, and black-out spells, were not severe. (R. 26.) Next, the ALJ found that Clemins’s severe impairments did not meet or equal any of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (hereinafter “Listings”), either alone or in combination. (R. 27–29.) The ALJ then found that Clemins retained the residual functional capacity to perform a “wide range of light work, ” subject to several non-exertional limitations.[2] (R. 29.) Finally, the ALJ found that, although Clemins could not perform any of his past relevant work, he could nevertheless perform other jobs existing in significant numbers in the national economy, including ampoule filler, final inspector, and photo finisher. (R. 35–36.) Thus, the ALJ found him not disabled under the Act. (R. 36.) The Appeals Council denied Clemins’s request for review, and this appeal followed. (R. 11–14.)

III. Listings

Clemins first argues that the ALJ erred in finding that his impairments did not meet or equal any of the impairments in the listings. Specifically, he faults the ALJ for failing to consider his Global Assessment of Functioning (“GAF”) scores, which “taken in context with the copious therapy notes, medical management consults, and hospital admissions, clearly demonstrates that the Commissioner’s finding that Mr. Clemins does not meet or equal Listed impairment 12.04, 12.06, or 12.06 [sic] at step three of the sequential analysis is not supported by substantial evidence.” (Pl. Br. 7.) He also contends that the ALJ ignored unspecified treating source opinions showing that he met or equaled the listings. (Pl. Br. 8–9.) I will address these arguments in turn.

A. Mental Health Listings and GAF Scores

1. Relevant Facts

Global Assessment of Functioning scores represent a “clinician’s judgment of the individual’s overall level of functioning.” American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders (“DSM-IV”) 32 (4th ed. 2000). The scale is divided into 10 ten-point ranges reflecting different levels of functioning, with 1–10 being the lowest and 91– 100 the highest. Id. DSM-V dropped the GAF “for several reasons, including its lack of conceptual clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice.” American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 16 (5th ed. 2013). Despite their shortcomings, GAF scores are nevertheless fairly commonly encountered in mental health treatment records. Clemins’s case is no different.

Medical records relevant to Clemins’s depression, anxiety, and other mental health issues begin on October 3, 2006, when Clemins began receiving treatment at Catawba Valley Behavioral Healthcare (“CVBH”). (R. 454–60.) Clemins reported feeling depressed and sad and reported that, when he was a child, his step-father physically and sexually abused him. (R. 455– 56.) Sarah Coleman, a mental health counselor, diagnosed chronic post-traumatic stress disorder (PTSD) and depressive disorder and recommended outpatient therapy. (R. 458–60, 1299–1300.) She indicated Clemins’s GAF was 40 on the date of his visit and that his highest GAF score during the last year was also 40.[3] (R. 297, 391, 394, 457, 459, 1299.) Clemins, who was already taking Xanax (R. 125.), was soon started on Cymbalta, 30 mg per day. (R. 1402.)

Clemins began receiving treatment at CVBH on a regular basis, including frequent therapy sessions with Coleman. At one of these sessions in December 2006, Clemins told Coleman, “If I had a gun, I’d shoot myself in the head. I really don’t feel safe alone. I might hurt myself.” (R. 476.) Coleman persuaded Clemins to check himself into Catawba Valley Medical Center, where he was admitted for complaints of “post-traumatic depression.” (R. 346–49, 476, 1212–15.) At the hospital, Dr. Charles Davis examined Clemins, diagnosing major depressive disorder and assigning a GAF score of 30.[4] (R. 348, 1214.) He increased Clemins’s Cymablta from 30 mg to 60 mg per day[5]; switched Clemins’s Xanax prescription to Valium, 5 mg twice a day, for “possible muscle spasm benefit”; and switched his Lyrica to Neurontin for affordability. (R. 348, 1214.) Clemins was discharged five days later in stable condition, denying suicidal ideation and “showing some improvement in his depression.” (R. 314, 1210.)

Clemins regularly visited CVBH for mental health treatment between 2006 and 2010, including for regular therapy sessions with Coleman. (R. 453–503, 549–580, 958–74, 1290– 1333, 1359–1401.) Treatment notes indicate that Clemins complained of sadness and depression at almost every visit and also frequently reported anxiety and panic attacks. (R. 453–503, 549– 580, 958–74, 1290–1333, 1359–1401.) At a few visits, Clemins reported suicidal ideations. (R. 476, 491–94, 972, 1373, 1398–99.) He reported visual hallucinations in March and April 2008, but treatment providers questioned whether these were really hallucinations as they occurred when Clemins was sleeping. (R. 557, 560, 572, 1320, 1322, 1381.) At Clemins’s November 29, 2007, and January 9, 2009, visits, Coleman assigned a GAF score of 50, which Coleman also indicated was the highest score over the preceding year.[6] (R. 550, 966, 1296.) Clemins stopped receiving treatment at CVBH in mid-2010, when he moved to South Carolina. (R. 1698–99.)

Clemins visited Anderson-Oconee-Pickens Mental Health Center (“AOP”) on September 1, 2010, for “[assessment] at the [recommendation] of [his] lawyer.” (R. 1816–17.) Clemins reported “episodic fleeting [suicidal ideation] related to inability to obtain disability” and indicated that he got only four hours of sleep per night. (R. 1816.) At the clinic, Monica Perez “discussed referral options with [Clemins]” but noted that his “primary interest [was] in disability for ‘physical/mental problems.’” (R. 1817.) For diagnostic impression, Perez indicated adjustment disorder and personality disorder and assigned a GAF score of 58.[7] (R. 1817.)

Clemins returned to AOP on April 12, 2011, reporting “depressed mood, panic attacks [three to four times per] day and continuing fleeting suicidal ideation since childhood.”

(R. 1815.) Clemins told licensed professional counselor Cheryl Rogers that he tried to jump off a cliff once as a child but made no other suicide attempts since. (R. 1815.) Clemins told Rogers that he was “bipolar and schizophrenic, ” but Rogers noted that this was “untrue according to previous records.” (R. 1815.) Rogers diagnosed depressive disorder based on Clemins’s depressed mood and personality disorder based on “attention seeking behaviors, ” and she assigned a GAF score of 62.[8] (R. 1815.)

Three days later, Clemins checked himself into AnMed Health for “suicidal ideation” over the previous two weeks. (R. 1751.) He reported that “two weeks ago, his wife stopped him from wanting to hang himself.”[9] (R. 1752.) Dr. Abdalla Bamashmus diagnosed major depressive disorder, depression due to general medical condition, and anxiety disorder and assigned a GAF score of 28. (R. 1753.) After doctors prescribed Neurontin, Clemins reported “significant response … for pain and for anxiety.” (R. 1751, 1769.) Clemins also reported significant improvement in sleep after doctors prescribed Navane and Remeron. (R. 1751.) On discharge, Dr. Fahd Zarrouf noted a GAF score of 45 and instructed Clemins to follow up at AOP. (R. 1751, 1771.)

Clemins visited AOP on June 1, 2011, where David Stevenson interviewed him and completed an initial clinical assessment. (R. 1819–1822.) Clemins reported that he had struggled with depression since he was a teenager and that his depression recently became more severe and difficult to manage. (R. 1819.) He told Stevenson that he tried to hang himself back in March and was admitted to AnMed Health form March 14 through March 20. (R. 1819, 1823.) Stevenson diagnosed depressive disorder and PTSD and assigned a GAF score of 45. (R. 1823.) Two weeks later, Stevenson completed a discharge summary, which noted that the AOP treatment team recommended that Clemins follow up with his primary care provider. (R. 1824.) On this form, Stevenson indicated that Clemins’s GAF at admission (June 1) was 50, and that his GAF at discharge (June 15) was also 50. (R. 1824.) Also in June 2011, Clemins began visiting Foothills Alliance, a non-profit sexual trauma center, for counseling relating to childhood sexual abuse. (R. 1804.)

Clemins was also examined on two separate occasions by consulting mental health examiners. On January 22, 2007, Clemens saw Dr. Anthony Carraway for a disability evaluation. (R. 406–09.) Clemins reported suffering from “post-traumatic depression” since being abused as a child. (R. 406.) He also reported that he “fight[s] anxiety in [his] chest.” (R. 406.) Clemins indicated that his back pain interfered with his sleep and made his depression worse. (R. 406.) He denied psychotic symptoms, suicidal or homicidal ideation, and hallucinations, and Dr. Carraway noted “no sustained objective manic symptoms.” (R. 407.) Clemins described his mood as “depressed and irritable.” (R. 407.) Dr. Carraway diagnosed alcohol dependence in remission, chronic PTSD, and probable dysthymia, which he described as “early onset with an overlay of mood disorder due to chronic pain and chronic mental illness with depressive symptoms.” (R. 408.) He assigned a GAF score of 62. (R. 408.)

On July 6, 2010, Clemins visited Michelle Coates, M.A., and Dr. Rebecca Reavis, Ph.D., for a psychological assessment. (R. 1677–81.) Coates asked Clemins why he couldn’t work; Clemins “immediately stated, ‘My back’s messed up.’” (R. 1677.) Clemins told Coates that he had not worked since August 2006, when, as Coates put it, he “impulsively” quit his job at Shurtape, “after getting into an altercation with a supervisor.” (R. 1678.) Clemins admitted a history of confrontational relationships with co-workers and supervisors and also admitted to threatening staff at the Social Security Administration. (R. 1678.)

Clemins described his depressive symptoms by recounting “a chronic history of experiencing sadness” and suicidal ideations and talking about life stressors. (R. 1679.) He rated his depression as a 10 on a scale from 1 to 10. (R. 1679.) Clemins reported his mood as “real depressed” and indicated frequent crying spells over the past month. (R. 1679.) However, Coates observed that Clemins “seemed to be in a good mood.” (R. 1679.) Clemins reported that his PTSD symptoms consisted of panic attacks, in which he gets “real nervous” and “his chest is tight, hurts, and feels like he has pressure on it.” (R. 1679.) Clemins indicated that these attacks can last up to three to four hours. (R. 1679.)

Based on her examination, Coates diagnosed depressive disorder and borderline personality disorder. (R. 1680.) Coates indicated that she believed Clemins “very easily meets the criteria for diagnosis of borderline personality disorder, which I believe to be his primary mental health issue.” (R. 1681.) Commenting on the contrast between Clemins’s presentation and his report of symptoms, she wrote that Clemins was “by no means as depressed as [he] seems to think that he is.” (R. 1681.) She rejected PTSD because Clemins’s description of three-hour-long panic attacks is “by definition … significantly longer than what panic attacks are supposed to last.” (R. 1681.)

In his decision, the ALJ summarized Clemins’s mental health treatment history. The ALJ noted Clemins’s December 2006 and April 2011 hospitalizations for suicidal ideation (R. 23, 25.) The ALJ also summarized Clemins’s treatment at Catawba Valley Behavioral Health, noting that Clemins

presented initially in 2006 with sadness and symptoms of PTSD, such as flashbacks and nightmares. Notes from 2007 report depression, anxiety, and panic attacks, and some issues with grief over the death of a parent. Notes from 2008 and 2009 report continued depressive and anxious complaints with low motivation and some social isolation. Similar complaints persisted into 2010, though treatment notes from February 2010 report [Clemins’s] “anxiety and depression continued to be manageable.”

(R. 23.) The ALJ also noted that Clemins received mental health treatment from licensed professional counselor Susan Salley in 2011, at Honea Path Free Clinic in 2010 and 2011, and at AOP Mental Health Center in 2010 and 2011. (R. 25.) Based on these records, the ALJ found that Clemins had severe impairments of PTSD, anxiety, depression, and borderline personality disorder. (R. 25.)

Although the ALJ found Clemins had several severe mental impairments, he found that none of these impairments met or equaled the Listings. (R. 27.) Specifically, the ALJ found that Clemins failed to satisfy the paragraph B criteria of sections 12.04, 12.06, and 12.08 of the Listings because Clemins did not have marked limitations in two of three areas of functioning (activities of daily living; social functioning; and maintaining concentration, persistence, and pace), or marked limitation in one area of functioning and repeated episodes of decompensation, each of extended duration. (R. 27.) Rather, the ALJ found that Clemins had mild restriction in activities in daily living and moderate difficulties in social functioning and maintaining concentration, persistence, and pace. (R. 28.) The ALJ also found that Clemins had no episodes of decompensation of extended duration because neither of his psychiatric hospitalizations lasted more than a week. (R. 29.)

In reaching these conclusions, the ALJ cited medical source opinions, evidence from medical records, and Clemins’s own statements. (R. 28.) The ALJ considered not only evidence supporting his conclusion, but evidence that arguably supported more extensive limitations. (R. 28.) For example, the ALJ explained his conclusion that Clemins had only “mild” restriction in activities of daily living as follows:

In activities of daily living, the claimant has mild restriction. Mental health treatment notes reveal depressed mood with significant isolation and limited daily activities (Exhibits B7F and B9F). However, in a Function Report from May 2010, claimant reported he cared for a dog, prepared simple meals, did laundry, drove, could go out alone, and shopped (Exhibit B6E), and claimant reported to Ms. Coates in July 2010 that he shopped, drove, and cared for personal needs independently (Exhibit B11F/2). Furthermore, Dr. Fulmer and Dr. Williams assessed no restriction at all in activities of daily living (Exhibits B4A and B10A).

(R. 28.)

The ALJ also “considered whether” Clemins met the paragraph C criteria for Listings 12.04 and 12.06, but concluded that “the evidence fails to establish the presence of the ‘paragraph ...


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