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Harwley v. Berryhill

United States District Court, W.D. Virginia, Lynchburg Division

September 26, 2017

NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.



         Plaintiff Michael D. Harwley (“Harwley”), proceeding pro se, filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) finding him not disabled and therefore ineligible for supplemental security income (“SSI”), and disability insurance benefits (“DIB”) under the Social Security Act (“Act”).[2] 42 U.S.C. §§ 401- 433, 1381-1383f. Harwley alleges that the Administrative Law Judge (“ALJ”) erred by: (1) failing to give adequate weight to the opinions of John O. Marsh, M.D. and James W. Worth, Ed.D; (2) misrepresenting his global assessment of functioning (“GAF”) score; and (3) improperly assessing his credibility. Harwley also alleges that new evidence merits remand. However, I conclude that substantial evidence supports the Commissioner's decision in all respects. Accordingly, I DENY Harwley's Motion for Summary Judgment (Dkt. No. 13) and GRANT the Commissioner's Motion for Summary Judgment (Dkt. No. 14).[3]


         This court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Harwley failed to demonstrate that he was disabled under the Act.[4] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations and alterations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).


         Harwley filed for SSI and DIB on July 5, 2012, claiming that his disability began on August 30, 2011, due to manic depressive, bipolar, severe anxiety, panic, and attention deficit hyperactivity (“ADHD”) disorders.[5] R. 12, 227, 249. Harwley's date last insured was September 30, 2012.[6] R. 12. The state agency denied Harwley's applications at the initial and reconsideration levels of administrative review. R. 69-80, 81-92, 95-109, 111-25. On January 2, 2015, ALJ Brian B. Rippel held a hearing to consider Harwley's claims for DIB and SSI. R. 38-68. Harwley was represented by counsel at the hearing; however, he is currently proceeding pro se. The hearing also included testimony from vocational expert Robert Jackson.

         On February 12, 2015, the ALJ entered his decision analyzing Harwley's claims under the familiar five-step process[7] and denying his claim for benefits. R. 12-31. The ALJ found that Harwley was insured at the time of the alleged disability onset and that he suffered from the severe impairments of degenerative disc disease associated with arthropathies, osteodiscitis, organic brain syndrome, affective disorder, anxiety disorder, ADHD, and substance addiction disorder in remission.[8] R. 14.The ALJ determined that these impairments, either individually or in combination did not meet or medically equal a listed impairment. R. 15-16. The ALJ concluded that Harwley retained the residual functional capacity (“RFC”) to perform a limited range of light work.[9] R. 16. Specifically, the ALJ found that Harwley is limited to simple, routine, repetitive tasks and entry-level unskilled work involving only occasional interaction with others, including the public, co-workers (including tandem tasks), and supervisors. The ALJ also determined Harwley requires a work setting with fewer than ten coworkers in his workspace, and is limited to low-stress work, with no more than occasional independent decision-making and occasional changes in the workplace setting. Id.

         The ALJ determined that Harwley was not capable of performing his past relevant work as crew chief (cell tower construction - tower erector supervisor) and self-employed carpenter. R. 29. However, the ALJ found that Harwley could perform jobs that exist in significant numbers in the national economy, such as cleaner, inspector/grader, assembler, and machine operator. R. 30. Thus, the ALJ concluded that Harwley was not disabled. R. 31. Harwley appealed the ALJ's decision and the Appeals Council denied his request for review on April 27, 2016. R. 1-4.


         Harwley argues that the ALJ should have found him disabled at step five, essentially an argument that the ALJ's disability determination was not supported by substantial evidence.[10]Specifically, Harwley alleges that the ALJ erred by: (1) failing to give adequate weight to the opinions of Drs. Marsh and Worth; (2) erroneously listing his global assessment of functioning (“GAF”) score as 55; and (3) giving improper weight to his criminal history and improperly assessing his credibility. Harwley also alleges that new evidence merits remand.

         A. Relevant Medical History

         Harwley presented to the emergency room on July 27, 2011 complaining of back and neck pain after falling down a few stairs.[11] R. 366. Imaging studies including x-rays and a CT scan of his head were negative for fractures, but did show some degenerative spondylosis and disc narrowing in the cervical and lumbar spine. R. 369-73. Harwley followed up with his primary care physician Dr. Marsh in August 2011, and Dr. Marsh indicated normal physical exam and CT scan. R. 388. Harwley followed up with Dr. Marsh again in July 2012, complaining of memory issues, headaches, and dizziness, and was referred to the University of Virginia (“UVA”) neurology department for “continued symptoms post concussion.”[12] R. 379- 80.

         Harwley presented to Jeffrey Ratliff, M.D. at the UVA neurology department in August 2012, complaining of difficulty completing tasks, headaches, loss of consciousness, vertigo, and emotional problems, following his head injury in July 2011. R. 395-96. Dr. Ratliff noted that his neurologic exam showed mild attention and memory impairments, but was otherwise unremarkable, and assessed post-concussive syndrome, likely provoked by his July 2011 head injury. R. 399. An MRI of his brain on August 30, 2012 showed no abnormalities. R. 599. Harwley returned to the UVA neurology department in October 2012, complaining of continued problems with concentration, headaches, and fatigue, but somewhat improved mood and temper. R. 562. In a March 2013 follow-up appointment, Harwley complained of continued headaches, as well as “emotional lability and short temper.” R. 622. In November 2012, Harwley underwent a neurocognitive assessment that showed intellectual abilities in the average range, with variability in certain functions from mildly impaired to high average. R. 619.

         Harwley was hospitalized for cervical osteodiscitis in June 2013, which his doctors associated with a history of intravenous drug abuse. R. 417. Upon discharge, providers cautioned Harwley not to use his PICC line to inject drugs due to risk of “sepsis and death” and though Harwley denied illegal drug use, he responded “well, if I inject myself, I'll be sure to not use the PICC line.” R. 422.

         Harwley began therapy sessions at Augusta Psychological Associates in September 2013, with complaints including depression, anxiety, memory lapses, and anger control issues. R. 755. He was diagnosed with major depressive disorder, single episode, generalized anxiety disorder, and somatization disorder and a GAF score of 55.[13] R. 761. Harwley had regular treatment at Augusta Psychological Associates until August 2014, continuing to complain of depression, and “cognitive/somatic complaints.” R. 989-1061.

         In October 2014, at the request of Harwley's stepfather, Dr. Worth performed a one-time psychological evaluation “for use in the process of seeking disability benefits.” R. 1067-1073. Diagnostic impression included bipolar disorder, ADHD, and panic disorder with agoraphobia. R. 1073. Dr. Worth assessed a GAF score of 39. Id. Dr. Worth concluded that Harwley was not capable of “completing an ordinary work week, performing his duties consistently, or maintaining regular work attendance.” Id.

         Also in October 2014, Harwley underwent another neuropsychological assessment at UVA, regarding reported cognitive changes associated with Harwley's July 2011 concussion. R. 1075-81. Apparently, Harwley had complained of worsening symptoms, particularly his memory issues, since the 2012 assessment. R. 1076. The examiner noted that the results of the test should be viewed with caution, as involving less than maximum effort. Further, the examiner generally noted that Harwley's intellectual abilities compared to ...

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