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Timothy H. v. Commissioner of Social Security

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

August 22, 2018

TIMOTHY H., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT & RECOMMENDATION

          JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Timothy H. asks this Court to review the Acting Commissioner of Social Security's (“Commissioner”) final decision denying his application for supplemental security income (“SSI”) under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381- 1383f. The case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 11. Having considered the administrative record, the parties' briefs, and the applicable law, I find that substantial evidence supports the Commissioner's decision. Therefore, I recommend that the Court deny Timothy H.'s Motion for Summary Judgment, ECF No. 14, grant the Commissioner's Motion for Summary Judgment, ECF No. 19, and affirm the Commissioner's final decision.

         I. Standard of Review

         The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. 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, a court reviewing the merits of the Commissioner's final decision asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); see Riley v. Apfel, 88 F.Supp.2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98-100 (1991)).

         “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 Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). 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, 594 (4th Cir. 1996)). 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” within the meaning of the Act if he or she is unable to 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. § 1382c(a)(3)(A); accord 20 C.F.R. § 416.905(a). Social Security ALJs follow a five-step process to determine whether a claimant is disabled. The ALJ asks, in sequence, whether the claimant (1) is working; (2) has a severe impairment that satisfies the Act's duration requirement; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or 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 Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017); 20 C.F.R. § 416.920(a)(4). The claimant bears the burden of proof through step four. Lewis, 858 F.3d at 861. At step five, the burden shifts to the agency to prove that the claimant is not disabled. See id.

         II. Procedural History

         Timothy H. filed for SSI on May 31, 2013, alleging disability caused by back pain, hepatitis C, manic depressive symptoms, bipolar disorder, and memory loss. Administrative Record (“R.”) 89, ECF No 9-1. Disability Determination Services (“DDS”), the state agency, denied his claim at the initial, R. 89-103, and reconsideration stages, R. 105-20. On February 5, 2016, Timothy H. appeared with counsel and testified at an administrative hearing before ALJ Theodore Annos. See R. 42-63. A vocational expert (“VE”) also testified at this hearing regarding the nature of Timothy H.'s past work and the availability of other work he could perform in the national and regional economies. R. 56-61.

         On February 29, 2016, ALJ Annos denied Timothy H.'s application in a written decision. R. 10-26. He determined that Timothy H. had severe impairments of “lumbar spine disorder, hepatitis C, obesity, affective disorders (depression and bipolar disorder), anxiety disorders (anxiety and panic disorder), and substance abuse (in remission.)” R. 12. None of these severe impairments, either alone or in combination, met or medically equaled a listing. R. 13-16. As part of the step-three analysis, ALJ Annos found that Timothy H. had mild restrictions in activities of daily living, mild difficulties in social functioning, moderate difficulties maintaining concentration, persistence, or pace, and no episodes of decompensation. R. 15.

         As to Timothy H.'s residual functional capacity (“RFC”), the ALJ found that he could “perform light work as defined in 20 C.F.R. § 416.967(b)”[1] except he could “never . . . climb[] ladders, ropes, or scaffolds, and [was] limited to occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps or stairs; occasional exposure to vibration and workplace hazards[;] . . . simple, routine, and repetitive tasks; and simple work-related decisions.” R. 16; see also R. 16-24. Relying on this RFC finding and the VE's testimony, the ALJ found that although Timothy H. had no past relevant work, R. 24, he could perform certain light jobs, such as night cleaner, dining room attendant, and production assembler, that existed in significant numbers in the national and regional economies, R. 24-25. Therefore, ALJ Annos determined that Timothy H. had not been disabled since May 31, 2013. R. 26. The Appeals Council denied his request for review, R. 1-3, and this appeal followed.

         III. Discussion

         Timothy H. challenges ALJ Annos's RFC assessment on three grounds. First, he asserts that the ALJ incorrectly weighed the opinion of the psychological consultative examiner Emilie Storch, Ph.D. Pl.'s Br. 2-17, ECF No. 15. Second, he argues that the ALJ failed to accommodate his moderate difficulties in concentration, persistence, or pace with an appropriate functional limitation in the RFC determination. Id. at 17-25. Third, he contends that the ALJ did not “consider the effect of depression on [his] pain, and vice versa.” Id. at 25-26. These arguments are not persuasive.

         A. Background

         1. Relevant Medical Evidence

         a. Back Pain

         Timothy H.'s back pain predates the relevant period. In January 2009, an MRI of his lumbar spine revealed “multilevel broad base disc bulges without significant spinal stenosis or neural foraminal narrowing” and “broad base disc bulge with a wide mouthed disc protrusion in the right central/paracentral location at ¶ 1/L2 without evidence for significant neural impingement.” R. 336-37. Timothy H. received an epidural steroid injection (“ESI”) at ¶ 4-L5 in March 2009, R. 341, but he did not receive consistent treatment for his back pain. He did, however, present to the emergency room on two occasions reporting radiating back pain. R. 344- 45 (Feb. 2010), 354 (May 2012). Findings on physical examination in February 2010 were mixed with tenderness, decreased range of motion, and positive straight leg raise test on the right, leading to a recommendation for physical therapy to help his range of motion, R. 344-45, but Timothy H. did not follow through with this recommendation, R. 418-19. Findings in May 2012 were unremarkable, with negative straight leg raise test and normal reflexes despite some “diffuse pain with palpation.” R. 356 (“The back appears normal.”). He also “demonstrate[d] narcotic-seeking behavior, asking specifically for ‘lortab 10s or [P]ercocet, '” in May 2012. Id. (punctuation corrected).

         Timothy H. continued to complain of and seek treatment for back pain during the relevant period. R. 451, 504, 532, 535, 633, 635, 638, 640, 645, 649, 659-60. Findings on contemporaneous physical examinations were largely unremarkable. Timothy H. displayed good strength, limited or no tenderness to palpation along the spine, [2] normal reflexes, no edema, and negative straight leg raise tests. R. 451-52, 633, 636, 641, 645, 659. He was also observed to have no difficulty walking, and he could “heel and toe walk.” R. 452, 633, 659; see also R. 466 (no gait disturbance during visit for hepatitis C). On at least one occasion, the doctor remarked that she “suspect[ed] either weakness secondary to pain or poor effort” regarding Timothy H.'s display of strength. R. 452. Providers often diagnosed only back pain. R. 452, 533, 535, 634, 636, 639, 650, 660. Timothy H. primarily treated his back pain with ESIs, which often provided significant relief. R. 532, 535, 634, 636, 639, 641. An emergency room doctor did not think it necessary to order an X-ray of his back on December 30, 2015, given the limited findings on physical examination. R. 645.

         b. Hepatitis C

         On September 19, 2012, Timothy H. established care as a “treatment naïve patient”[3] at the Hepatitis Treatment Center, where he saw Nancy Downey, N.P. R. 392-97. His comorbidities included depression and chronic back and leg pain, both of which he treated with medications. R. 392. Timothy H. was eager to be treated for the viral infection and frustrated with his lack of treatment so far because he had not been feeling well. Id. In October after a liver biopsy, Timothy H. was diagnosed with chronic hepatitis C with minimal activity and no fibrosis. R. 361-62, 380. In reviewing the results of the biopsy, NP Downey commented that the “results indicate that patient does not need to be treated at this time.” R. 397. Later in October, NP Downey and Robert Brennan, M.D., wrote to Joseph Hostetler, M.D., one of Timothy H.'s primary care physicians, and explained that “[f]ortunately for [Timothy H.], the biopsy demonstrated ‘minimal activity and no fibrosis.' Therefore, in light of his significant comorbidities, it is appropriate to not treat his chronic Hepatitis C infection at this time.” R. 391.

         Timothy H. did not receive any treatment for his hepatitis C during the relevant period, other than to present for annual visits with NP Downey and Dr. Brennan. R. 466 (Oct. 2013), 580 (Nov. 2014), 570 (Nov. 2015); see also R. 576 (May 2015 vaccination for hepatitis A and B). During these annual visits, Timothy H.'s status remained “treatment naïve, ” and it was confirmed that he was “not on treatment.” R. 466, 570, 576, 580. Timothy H. repeatedly denied experiencing any symptoms[4] or disease complications. See Id. In October 2013, a comment in Timothy H.'s chart noted that the most recent biopsy showed that his hepatitis C was “not very active at [that] time, ” he had “no scarring in [his] liver, ” and his “liver [was] in good shape” and “look[ed] good.” R. 588. Timothy H. was informed that he did “not need to be treated at [that] time” and could “wait until there [was] better treatment available.” Id.; see also R. 576 (“Waiting for interferon-free regimen.” (spelling corrected)).

         c. Mental Impairments

         During an intake visit at Danville-Pittsylvania Community Services in February 2012, Timothy H. “appeared to be malingering, as he requested a doctor that would prescribe him ‘what he needs.'” R. 438. He “instructed” that his paperwork be altered-e.g., by including his hepatitis C and removing information related to his substance abuse-to improve his chances of obtaining disability. Id. During this visit, he mentioned his pending disability application several times and relayed that he wanted to “get everything done today.” Id. It was recommended that Timothy H. receive case management and substance abuse outpatient services, but he “adamantly refused” both as he “only want[ed] to see the psychiatrist to get his medications and ‘to get disability.'” R. 439-40. Timothy H.'s treatment for his mental impairments thus consisted of visits for medication refills. R. 431-37.

         Timothy H. presented to his initial psychiatric evaluation with Don Tessmann, M.D., later in February 2012 with a folder of medical information and walking with a cane. R. 431. He left both items at the office after getting a prescription for Valium. Id. His mental status examination during this visit was unremarkable, and Timothy H. was diagnosed with major depressive disorder and polysubstance abuse. Id. During follow-up visits with Dr. Tessmann in May, August, and October 2012 and January and April 2013, mental status examinations were “essentially within normal limits” and Timothy H. often denied all symptoms. R. 433-37; see also R. 413, 425, 427 (normal mental status examinations during treatment with Dr. Hostetler). Timothy H. continued this ...


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