United States District Court, W.D. Virginia, Lynchburg Division
MICHAEL D. HARWLEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
S. BALLOU UNITED STATES MAGISTRATE JUDGE
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”). 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.
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. 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.
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. R. 12, 227, 249.
Harwley's date last insured was September 30,
2012. 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.
February 12, 2015, the ALJ entered his decision analyzing
Harwley's claims under the familiar five-step
process 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. 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. 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
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.
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.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.
Relevant Medical History
presented to the emergency room on July 27, 2011 complaining
of back and neck pain after falling down a few
stairs. 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.” R. 379- 80.
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.
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.
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. 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.
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
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 ...