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Holmes v. Berryhill

United States District Court, E.D. Virginia, Richmond Division

June 6, 2018

ALETHEA R. HOLMES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David J. Novak, United States Magistrate Judge

         On January 22, 2013, Alethea R. Holmes ("Plaintiff) applied for Social Security Disability Benefits ("DIB") under the Social Security Act ("Act"), alleging disability from post-traumatic stress disorder ("PTSD"), depressive disorder, asthma, obsessive-compulsive disorder, median nerve injury, and lumbo-sacral strain with an alleged onset date of October 1, 2011. The Social Security Administration ("SSA") denied Plaintiffs claims both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claim in a written decision and the Appeals Council denied Plaintiffs request for review. Plaintiff subsequently filed a civil action, and the Commissioner consented to remand the case. The Appeals Council remanded the case to the ALJ, who conducted a second hearing. The ALJ once again denied Plaintiffs claim in a written decision, and the Appeals Council denied Plaintiffs request for review, rendering the second ALJ's decision as the final decision of the Commissioner.

         Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred in failing to properly weigh the opinions of Plaintiff s treating psychiatrists and thereby properly determine her residual functional capacity ("RFC"), failing to properly evaluate Plaintiffs testimony and failing to adequately consider the Veterans Administration's ("VA") disability determination. (Mem. in Support of Pl.'s Mot. For Summ. J. ("Pl.'s Mem.") (ECF No. 10) at 16-27.) This matter now comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on the parties' cross-motions for summary judgment, rendering the matter ripe for review.[1] For the reasons that follow, the Court recommends that Plaintiffs Motion for Summary Judgment (ECF No. 8) and Motion to Remand (ECF No. 9) be DENIED, that Defendant's Motion for Summary Judgment (ECF No. 11) be GRANTED and that the final decision of the Commissioner be AFFIRMED.

         I. PROCEDURAL HISTORY

         On January 22, 2013, Plaintiff filed an application for DIB with an alleged onset date of October 1, 2011. (R. at 183-87.) The SSA denied these claims initially on June 27, 2013, and again upon reconsideration on April 15, 2014. (R. at 106-16, 118-24.) At Plaintiffs written request, the ALJ held a hearing on October 6, 2014. (R. at 37-80.) During the hearing, Plaintiff amended her alleged onset date to October 25, 2011. (R. at 23, 41.) On October 15, 2014, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act. (R. at 32.) On March 26, 2015, the Appeals Council denied Plaintiffs request for review. (R. at 820-25.)

         Plaintiff subsequently filed a civil action in this Court. (R. at 782-84.) On October 7, 2015, the Court entered an order remanding the case to further develop the record and evaluate Plaintiffs RFC. (R. at 788-89.) The Appeals Council remanded the case to an ALJ on February 10, 2016. (R. at 798-802.)

         The ALJ held a second hearing on June 20, 2016. (R. at 749-81.) On June 28, 2016, the ALJ issued a written opinion, again denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because she could perform work that exists in the national economy. (R. at 726-42.) On December 9, 2016, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner subject to review by this Court. (R. at 711 -14.)

         II. STANDARD OF REVIEW

         In reviewing the Commissioner's decision to deny benefits, a court "will affirm the Social Security Administration's disability determination 'when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence."' Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm V of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial evidence requires more than a scintilla but less than a preponderance, and includes the kind of relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Indeed, "the substantial evidence standard 'presupposes ... a zone of choice within which the decision makers can go either way, without interference by the courts. An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.'" Dunn v. Colvin, 607 Fed.Appx. 264, 274 (4th Cir. 2015) (quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988)). To determine whether substantial evidence exists, the court must examine the record as a whole, but may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)). In considering the decision of the Commissioner based on the record as a whole, the court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951)). The Commissioner's findings as to any fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 477. If substantial evidence in the record does not support the ALJ's determination or if the ALJ has made an error of law, the court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         The Social Security Administration regulations set forth a five-step process that the agency employs to determine whether disability exists. 20 C.F.R. § 404.1520(a)(4); see Mascio, 780 F.3d at 634-35 (describing the ALJ's five-step sequential evaluation). To summarize, at step one, the ALJ looks at the claimant's current work activity. § 404.1520(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. § 404.1520(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. § 404.1520(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's RFC, accounting for the most that the claimant can do despite her physical and mental limitations. § 404.1545(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. § 404.1520(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform any work existing in the national economy. § 404. 1520(a)(4)(v).

         III. THE ALJ'S DECISION

         On June 20, 2016, the ALJ held a hearing during which Plaintiff (represented by counsel), a medical expert and a vocational expert testified. (R. at 749-81.) On June 28, 2016, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 726-42.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 730-41.) At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity during the period from her alleged onset date through her date last insured, December 31, 2012. (R. at 731.) At step two, the ALJ determined that Plaintiff had the following severe impairments: PTSD, depressive disorder, asthma, obsessive-compulsive disorder, median nerve injury and lumbo-sacral strain. (R. at 731.) Then, at step three, the ALJ found that Plaintiff did not have any impairment or combination of impairments that met or medically equaled one of the listed impairments. (R. at 732.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform light work with certain limitations. (R. at 734.) Plaintiff could stand and/or walk for two hours in an eight-hour workday, with the option to alternate between sitting and standing every half hour. (R. at 734.) Plaintiff could occasionally balance, stoop, crouch or climb ramps and stairs. (R. at 734.) Plaintiff could frequently push or pull with her upper and lower extremities and could frequently grasp, handle or finger with her bilateral upper extremities. (R. at 734.)

         Plaintiff could never kneel, crawl or climb ladders, ropes or scaffolds. (R. at 734.) Plaintiff had to avoid exposure to hazards, pulmonary irritants, extreme temperatures, humidity and wetness. (R. at 734.) Mentally, Plaintiff could perform unskilled work in a non-production oriented work setting with no interaction with the public and no more than occasional interaction with co-workers and supervisors. (R. at 734.)

         At step four, the ALJ found that Plaintiff could not perform any past relevant work. (R. at 740.) At step five, the ALJ determined that Plaintiff could perform jobs existing in significant numbers in the national economy. (R. at 740-41.) Therefore, Plaintiff did not qualify as disabled under the Act. (R. at 741.)

         IV. ANALYSIS

         Plaintiff, forty-two years old at the time of this Report and Recommendation, previously worked as a ground radar repair person, an armed escort, a safety assistant and a research assistant. (R. at 230.) She applied for Social Security Benefits, alleging disability from PTSD, depressive disorder, asthma, obsessive-compulsive disorder, median nerve injury and lumbo-sacral strain, with an amended alleged onset date of October 25, 2011. (R. at 730, 759.)[2] Plaintiffs appeal to this Court alleges that the ALJ erred in (1) failing to properly weigh the medical opinions of her treating psychiatrists, and therefrom properly determine her RFC, (2) failing to properly evaluate Plaintiffs credibility and (3) failing to adequately consider the VA's disability determination. (Pl.'s Mem. at 16-27.) For the reasons set forth below, the ALJ did not err in her decision.

         A. Substantial Evidence Supports the ALJ's Assignment of Weight and RFC Determination.

         Plaintiff argues that the ALJ erred in failing to properly weigh the medical opinions of her treating psychiatrists and thereby failed to adequately explain the mental limitations in Plaintiffs RFC. (Pl.'s Mem. at 16-24.) Specifically, Plaintiff contends that because the opinions of treating psychiatrists Meagan E. Cogbill, M.D., and Elbert F. Sholar, M.D., relied upon appropriate medical findings and did not contradict other evidence in the record, the ALJ erred when she failed to give the psychiatrists' opinions controlling weight. (Pl.'s Mem. at 22.) Defendant responds that the ALJ correctly determined Plaintiffs RFC. (Mem. in Support of Def 's Mot. For Summ. J. ("Def.'s Mem.") (ECF No. 11) at 14.) Defendant contends that substantial evidence in the record supports the weight that the ALJ afforded the medical opinions. (Def.'s Mem. at 15-19.)

         During the sequential analysis, when the ALJ determines whether the claimant has a medically-determinable severe impairment, or combination of impairments, that would significantly limit the claimant's physical or mental ability to do basic work activities, the ALJ must analyze the claimant's medical records that are provided and any medical evidence resulting from consultative examinations or medical expert evaluations that have been ordered. 20 C.F.R. §§ 404.1512, 404.1527. When the record contains a number of different medical opinions, including those from Plaintiffs treating sources, consultative examiners or other sources that are consistent with each other, then the ALJ makes a determination based on that evidence. § 404.1527(c). If, however, the medical opinions prove inconsistent with each other or other evidence, the ALJ must evaluate the opinions and assign them respective weight to properly analyze the evidence involved. §§ 404.1527(c)(2)-(6), (d).

         Under the regulations, only an "acceptable medical source" may be considered a treating source that offers an opinion entitled to controlling weight. SSR 06-03p.[3] Licensed physicians and licensed or certified psychologists constitute acceptable medical sources. § 404.1502(a). The ALJ may also consider evidence from "other sources" — including nurse-practitioners, therapists and social workers — as evidence of the severity of impairment or for the effect that the impairments have on the claimant's ability to work. § 404.1513(d).[4] Under the applicable regulations and case law, a treating source's opinion must be given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. § 404.1527(c)(2); Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017); Craig, 76 F.3d at 590; SSR 96-2p. Notably, the ALJ does not have to accept an opinion from a treating source that opines on the claimant's ultimate disability for employment purposes, or when the treating source's opinion is inconsistent with other evidence or is not well-supported. §§ 404.1527(c)(3)-(4), (d).

         Unless the ALJ "dredged up 'specious inconsistencies, "' courts generally do not interfere with the ALJ's decision. Dunn, 607 Fed.Appx. at 267 (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1999)). In other words, the ALJ's assignments of weight stand unless the ALJ failed to offer a sufficient reason for his decision. Id.

         The ALJ must consider the following when evaluating a treating source's opinion: (1) the length of the treating source relationship and frequency of examination; (2) the nature and extent of the treatment relationship; (3) supportability based upon the medical record; (4) consistency between the opinion and the medical record; (5) any specialization on the part of the treating source; and, (6) any other relevant factors. § 404.1527(c). However, the regulations specifically vest the ALJ with the authority to determine whether a claimant is disabled as defined under the Act. § 404.1527(d)(1).

         Additionally, an ALJ may consider the time frame of the evidence. Here, Dr. Sholar and Dr. Cogbill only treated Plaintiff after the date last insured. (R. at 369-70, 512, 577-78.) The relevant time period spans from the amended alleged onset — October 25, 2011 — through the date last insured — December 31, 2012. Plaintiff must prove her disability within that relevant time frame. 20 C.F.R. §§ 404.101(a), 404.130; Johnson, 434 F.3d at 655-56. While the ALJ may consider evidence created after the date last insured, the evidence must provide a link to Plaintiffs condition before the date last insured. Bird, 699 F.3d at 340-41. Evidence "not linked in any manner to the claimant's condition before her [date last insured]" has no relevance on the ALJ's determination, and the ALJ does not need to retroactively consider it. Johnson, 434 F.3d at 655-56. When reviewing the ALJ's decision, the Court will therefore review evidence in the record from the relevant time period — from October 25, 2011 through December 31, 2012 — and any evidence thereafter that specifically relates back to Plaintiffs condition during that time.

         1. Dr. Sholar's Opinion.

         On June 14, 2013, Dr. Sholar completed a Psychiatric/Psychological Impairment Questionnaire, describing Plaintiffs prognosis as "poor to fair." (R. at 471-78.) Dr. Sholar listed Plaintiffs primary symptoms, including depressed mood, panic attacks, crying spells, poor sleep, difficulty concentrating and irritability. (R. at 473.) Dr. Sholar checked boxes indicating that Plaintiff had mild limitations in her ability to carry out simple instructions and to maintain socially appropriate behavior, neatness and cleanliness. (R. at 474-75.) Dr. Sholar opined that Plaintiff had moderate limitations in her ability to remember locations and procedures, to understand and remember one- or two-step instructions, to make simple work-related decisions, to appropriately interact with the public and ask simple questions or request assistance. (R. at 474-75.) Dr. Sholar also concluded that Plaintiff had moderate limitations noticing normal hazards and taking precautions, travelling to unfamiliar places or using public transportation and setting realistic goals. (R. at 476.)

         Dr. Sholar opined that Plaintiff had marked limitations in the following areas: understanding, remembering and executing detailed instructions; maintaining concentration for extended periods; performing activities within a schedule; maintaining regular attendance and punctuality; sustaining ordinary routine without supervision; working with or near others without distraction; completing a normal workweek without interruptions; performing at a consistent pace without unreasonable breaks; accepting instructions and responding appropriately to criticism from supervisors; getting along with co-workers without distracting them; and, responding appropriately to changes in the work setting. (R. at 474-75.)

         Dr. Sholar opined that Plaintiffs symptoms dated back to as early as 2004. (R. at 478.) Dr. Sholar concluded that Plaintiff could not perform even low stress jobs and would miss work more than three times per month. (R. at 477-48.) Significantly, Dr. Sholar identified no laboratory or diagnostic test results that supported his medical opinion. (R. at 472.)

         The ALJ afforded limited weight to Dr. Sholar's opinion. (R. at 738.) The ALJ determined that Dr. Sholar's opinion conflicted with Plaintiffs "grossly conservative treatment history," moderate restrictions reflected in her mental evaluations and Plaintiffs admitted capabilities. (R. at 738.) Additionally, the ALJ emphasized that Dr. Sholar's treatment did not begin until 2013, after the date last insured, and that his opinion conflicted with Plaintiffs work history between 2006 and 2011. (R. at 738.)

         Dr. Sholar's treatment records, objective medical evidence and Plaintiffs statements regarding her daily activities support the ALJ's assignment of weight to Dr. Sholar's opinion. First, Dr. Sholar offered no explanation for how he determined that Plaintiffs symptoms and limitations had persisted since 2004. (R. at 478.) Indeed, Dr. Sholar cited no test results to support his conclusions. (R. at 472.) Similarly, Dr. Sholar provided no link by which the ALJ could connect Dr. Sholar's June 2013 opinion with Plaintiffs condition before her date last insured, over a year and a half earlier. (R. at 471-78.)

         Second, Dr. Sholar's own treatment records support the ALJ's decision to afford limited weight to his opinion. Plaintiff saw Dr. Sholar twice, and both appointments occurred after Plaintiffs date last insured. (R. at 369, 577.) On February 25, 2013 — sixteen months after the relevant period ended — Plaintiff first presented to Dr. Sholar at McGuire VA Medical Center for medication management to treat her PTSD and depression. (R. at 369.) During that appointment, Dr. Sholar reviewed Plaintiffs past records with her. (R. at 369.) According to Dr. Sholar's notes, Plaintiff reported "having problems" since 2004, after she served in Iraq. (R. at 369.) However, Dr. Sholar did not specify from which conditions or to what extent Plaintiff had suffered limitations during that time. (R. at 369.) Plaintiffs then-current symptoms included depressed mood, poor sleep, increased appetite, weight gain, crying spells, poor concentration, low energy, anhedonia, nightmares, flashbacks and irritability. (R. at 369.) She isolated herself and avoided being in public. (R. at 369.)

         During the visit, Dr. Sholar provided "supportive psychotherapy." (R. at 370.) Plaintiff had interest in continuing psychotherapy, but she only had availability on Saturdays due to her schedule caring for her two children and her sister's three children. (R. at 369-70.) In his mental status examination, Dr. Sholar noted that Plaintiff remained cooperative with a depressed mood, adequate grooming, good eye contact and insight, as well as normal thought processes ...


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