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Packett v. Berryhill

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

October 16, 2018

FRANCES OLIVER PACKETT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David J. Novak United Slates Magistrate Judge

         On August 6, 2012, Frances Oliver Packett ("Plaintiff) applied for Social Security Disability Benefits ("DIB") under the Social Security Act ("Act"), alleging disability from February 15, 2008. The Social Security Administration ("SSA") denied Plaintiffs claim both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claim in a written decision and the Appeals Council granted Plaintiffs request for review, remanding the case to an ALJ for resolution. The ALJ again denied Plaintiffs claim in a written decision and the Appeals Council denied Plaintiffs request for review, rendering the 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: (1) assigning little or limited weight to the opinions of Plaintiff s treating physicians and nurses; (2) failing to properly evaluate Plaintiffs testimony related to her mental impairments; and, (3) relying on a flawed hypothetical question to the vocational expert ("VE"). (Mem. in Support of Pl.'s Mot. For Summ. J. ("Pl.'s Mem.") (ECF No. 7) at 1-32.) 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. 7) 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 August 6, 2012, Plaintiff filed an application for DIB with an alleged onset date of February 15, 2008. (R. at 232-39.) The SSA denied these claims initially on December 7, 2012, and again upon reconsideration on July 22, 2013. (R. at 238-39, 250.) At Plaintiffs written request, the ALJ held a hearing on September 25, 2014. (R. at 185.) On November 5, 2014, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because she could perform jobs existing in significant numbers in the national economy. (R. at 253-71.) On March 22, 2016, the Appeals Council granted Plaintiffs request for review, remanding the case to an ALJ for resolution. (R. at 272-74.) The Appeals Council directed the ALJ to further evaluate Plaintiffs mental impairments, give further consideration to Plaintiffs maximum residual functional capacity ("RFC"), further evaluate Plaintiffs subjective complaints and obtain evidence from a medical expert to clarify the nature and severity of Plaintiff s impairments. (R. at 15.)

         On January 24, 2017, the ALJ held a second hearing to reconsider Plaintiffs claim. (R. at 39-82.) On March 1, 2017, the ALJ issued a written opinion denying Plaintiffs claim and again concluding that Plaintiff did not qualify as disabled under the Act, because she could perform jobs existing in significant numbers in the national economy. (R. at 12-38.) On August 3, 2017, 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 1-5.)

         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 'r o/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. Aslrue, 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. Barnhar(, 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. § 404.152O(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. § 4O4.l52O(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. § 404.152O(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. § 404.152O(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform any work existing in the national economy. § 4O4.l52O(a)(4)(v).

         III. THE ALJ'S DECISION

         On January 24, 2017, the ALJ held a hearing during which Plaintiff (represented by counsel) and a VE testified. (R. at 39-82.) On February 24, 2017, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 12-38.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 18-31.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from her alleged onset date of February 15, 2008 through her date last insured of June 30, 2013. (R. at 18.) At step two, the ALJ found that Plaintiff had the following severe impairments: conversion disorder, affective disorder, anxiety disorder, degenerative disc disease, perceived migraine headaches and perceived syncope[2]/seizures. (R. at 18.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 19-22.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform medium work with the following exertional limitations. (R. at 22.) Plaintiff could lift and carry twenty-five pounds frequently and fifty pounds occasionally, sit/stand/walk for six hours in an eight-hour workday, constantly push or pull at the medium level of exertion, and never climb ladders, ropes or scaffolds. (R. at 22.) The ALJ precluded Plaintiff from workplace hazards such as unprotected heights or moving mechanical parts. (R. at 22.) Plaintiff could understand, remember and carry out short, simple instructions consistent with the ability to perform unskilled work. (R. at 22.) Plaintiff could have occasional interactions with supervisors and co-workers, but no interaction with the public. (R. at 22.) At step four, the ALJ found that Plaintiff did not have any past relevant work. (R. at 30.) At step five, the ALJ determined that Plaintiff could perform jobs existing in significant numbers in the national economy. (R. at 30-31.) Therefore, Plaintiff did not qualify as disabled under the Act. (R. at 31.)

         IV. ANALYSIS

         Plaintiff, fifty-one years old at the time of this Report and Recommendation, previously worked as a cook and maintenance person in a restaurant chain. (R. at 249, 798.) She applied for Social Security Benefits, alleging disability from back pain, migraines, black-out spells, learning disability, high blood pressure and asthma, with an alleged onset date of February 15, 2008. (R. at 232.) Plaintiffs appeal to this Court alleges that the ALJ erred in: (1) affording little or limited weight to the opinions of Plaintiffs treating physicians; (2) failing to properly evaluate Plaintiffs testimony related to her mental impairments; and, (3) relying on a flawed hypothetical question to the VE. (Pl.'s Mem. at 21-32.) For the reasons set forth below, the ALJ did not err in his decision.

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

         Plaintiff argues that the ALJ erred by assigning little or limited weight to the opinions of Joseph Dolansky, D.O., and Prakash Ettigi, M.D. - Plaintiffs treating physicians - and Victoria McKay, N.P., and Pamela Morrison F.N.P. - Plaintiffs nurses. (Pl.'s Mem. at 21-25.)

         Defendant responds that substantial evidence supports the ALJ's decision, because Dr. Ettigi, Dr. Dolansky, Nurse Morrison and Nurse McKay signed their opinions after the date last insured; and, the record does not support the opinions. (Mem. in Support of Def.'s Mot. for Summ. J. ("Def.'s Mem.") (ECF No. 11) at 16-20.)

         During the sequential analysis, when the ALJ determines whether the claimant has a medically-determinable severe impairment, or combination of impairments which 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 evaluation 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 the claimant's 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 are inconsistent internally with each other, or other evidence, the ALJ must evaluate the opinions and assign them respective weight to properly analyze the evidence involved. §§ 4O4.l527(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] Acceptable medical sources include licensed physicians and licensed or certified psychologists.

         § 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, an ALJ must give a treating source's opinion controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with other substantial evidence in the record. § 404.1527(c)(2); Lewis v. Benyhill, 858 F.3d 858, 867 (4th Cir. 2017); Craig, 76 F.3d at 590; SSR 96-2p.[5]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).

         Courts generally should not disturb an ALJ's decision as to the weight afforded a medical opinion absent some indication that the ALJ "dredged up 'specious inconsistencies."' Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). Indeed, a reviewing court will leave untouched an ALJ's decision regarding the weight afforded to a medical opinion unless the ALJ failed to give a sufficient reason for the weight afforded. Id. In other words, the ALJ's assignments of weight stand unless the ALJ failed to offer a sufficient reason for her 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, those same regulations specifically vest the ALJ - not the treating source - with the authority to determine whether a claimant is disabled as that term is defined under the Act. § 404.1527(d)(1). Although the regulations explicitly apply these enumerated factors only to treating sources, those same factors may be applied in evaluating opinion evidence from "other sources." SSR 06-03p.

         Additionally, the ALJ may consider the time frame of the evidence. The relevant time period spans from the alleged onset - February 15, 2008 - through the date last insured - June 30, 2013. Plaintiff must prove her disability within that 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.

         Here, Dr. Dolansky treated Plaintiff only once before the date last insured. (R. at 1037-38, 1040-41.) Plaintiff saw Dr. Ettigi only after the date last insured. (R. at 1225-31.) Nurse Morrison treated Plaintiff for two months during the relevant period and Nurse McKay treated Plaintiff over three years after the relevant period ended. (R. at 1219-23, 1260-64.) When reviewing the ALJ's decision, the Court will therefore review evidence in the record from the relevant lime period - from February 15, 2008 through June 30, 2013 - and any evidence thereafter that specifically relates back to Plaintiffs condition at that time.

         1. Dr. Dolansky's Opinion

         The ALJ did not err in assigning little weight to Dr. Dolansky's opinion and offered specific reasoning for the weight assigned. Dr. Dolansky, a psychiatric specialist, diagnosed Plaintiff with mood disorder and pseudobulbar affect secondary to a traumatic brain injury ("TBI") on May 1, 2013, and again on September 16, 2013. (R. at 1037-38, 1040-41.) On May 1, Dr. Dolansky reported that Plaintiff displayed impaired attention and concentration, pressured speech, a depressed and anxious mood, and tangential thought processes with loose associations. (R. at 1037.) On September 16, Plaintiff showed improvement with fair attention and concentration and normal speech, but she still exhibited anxious and depressed mood with tangential thought processes and loose associations. (R. at 1040.) Dr. Dolansky then signed treatment notes prepared by Albert Archard, L.C.S.W., from August 13, 2013 until January 3, 2014, diagnosing Plaintiff with a mood disorder. (R. at 1042-44, 1100.)

         Finally, on October 10, 2013, Mr. Archard completed a psychiatric/psychological impairment questionnaire on behalf of Plaintiff. (R. at 1045-52.) Dr. Dolansky signed the questionnaire on December 5, 2013. (R. at 1052.) In the questionnaire, Mr. Archard and Dr. Dolansky opined that Plaintiff displayed difficulty thinking or concentrating, hostility and irritability, as well as poor memory. (R. at 1046.) According to the questionnaire, Plaintiff appeared mildly limited in the ability to understand and remember detailed instructions and carry out simple one or two-step instructions. (R. at 1048.) Mr. Archard and Dr. Dolansky classified Plaintiff as moderately limited in her ability to carry out detailed instructions and to sustain an ordinary routine without supervision. (R. at 1048.) Finally, Plaintiff had marked limitations in her ability to maintain attention and concentration for extended periods of time and her ability to work in coordination with or in proximity to others without being distracted by them. (R. at 1048.)

         The ALJ assigned "little weight" to these opinions, because Dr. Dolansky signed the opinions after Plaintiffs date last insured and the opinions contradicted the longitudinal record. (R. at 27.) The ALJ cited three aspects of the record that conflicted with these opinions: (1) the objective findings in Plaintiffs diagnostic tests and examinations; (2) Plaintiffs statements that medication relieved her pain; and, (3) Plaintiffs daily activities, including "walk[ing] every day, go[ing] to church, go[ing] out to the movies, draw[ingl, mak[ing] sculptures...[and] spen[ding] a lot of time with her grandchildren." (R. at 27.) Substantial evidence supports the ALJ's decision.

         First, Dr. Dolansky's opinion regarding Plaintiffs memory and concentration limitations conflicts with his own examination notes and reports. On May 1, 2013, Dr. Dolansky stated that Plaintiff had normal memory, perception and a good fund of knowledge despite Plaintiffs impaired attention and concentration, pressured speech and agitated behavior during the same appointment. (R. at 1037.) Dr. Dolansky started Plaintiff on Depakote and Celexa and recommended that she return in four to five weeks. (R. at 1038.) Plaintiff failed to attend a scheduled appointment with Dr. Dolansky on August 5, 2013. (R. at 1039.) On September 16, 2013, Plaintiff returned to Dr. Dolansky more than four months after her initial appointment. (R. at 1040-41.) Dr. Dolansky noted Plaintiffs normal appearance, behavior, and memory as well as her fair attention and concentration. (R. at 1040.) However, Plaintiff displayed depressed mood, delusional thought content and loose associations. (R. at 1040.) Dr. Dolansky refused to prescribe any psychotropic medications and recommended further treatment in six to seven weeks. (R. at 1041.) Dr. Dolansky treated Plaintiff once more on October 29, 2013 and noted her normal appearance, behavior, mood, thought content and memory. (R. at 1089-90.) Dr. Dolansky further described Plaintiffs fair attention and concentration. (R. at 1089.) Plaintiff reported increased daily activities and Dr. Dolansky noted that medication worked well to treat both Plaintiffs migraines and seizure disorder. (R. at 1089.)

         Dr. Dolansky's own observations do not support his opinion. His medical examinations indicated that Plaintiff displayed normal memory during all three occasions that he treated Plaintiff. (R. at 1037, 1040, 1089.) Plaintiff displayed fair attention and concentration during two of these appointments. (R. at 1040, 1089.) Also, Dr. Dolansky reported that Plaintiffs medication had relieved her symptoms. (R. at 1089.) These findings conflict with Dr. Dolansky's opinion that Plaintiff possessed poor memory and marked limitations maintaining attention or concentrating.

         Second, objective medical evidence in the record contradicts Dr. Dolansky's opinion regarding Plaintiffs mental limitations. Specifically, Dr. Dolansky diagnosed Plaintiff with mood disorder secondary to a TBI and found that Plaintiff had moderate limitations in carrying out detailed instructions and sustaining a routine without supervision, as well as marked limitations in maintaining attention and concentration for extended periods or working with others. (R. at 1048-55.) Dr. Dolansky described Plaintiffs marked limitations interacting with the public, asking simple questions, requesting assistance, getting along with peers or maintaining appropriate behavior to adhere to basic standards of neatness and cleanliness. (R. at 1049.) Further, Dr. Dolansky opined that the symptoms causing Plaintiffs limitations began during her childhood. (R. at 1052.)

         On January 15, 2010, almost two years after her alleged onset date, Plaintiff reported to medical professionals at Tappahannock Hospital that she did not have a history of headaches. (R. at 850.) On January 24, 2011, Plaintiff presented to the Tappahannock Primary Urgent Care Facility, complaining of chest pain and a migraine. (R. at 666.) This visit marked the first time in the record where Plaintiff noted psychological symptoms. During a physical evaluation from James McCorry, D.O., Plaintiff reported "no syncope." (R. at 666.) Dr. McCorry described Plaintiff as comfortable, alert and oriented. (R. at 667.) Plaintiff displayed no motor, sensory or cerebellar deficits and her speech, gait and memory all tested normally after a "complex assessment was performed." (R. at 667-68.) Plaintiff took Dilaudid for pain, Zofran for nausea and Imitrex for migraines. (R. at 667.)

         On January 26, 2011, Plaintiff treated at King and Queen Family Practice with Linda Mitchell, N.P., for a physical assessment. (R. at 649-53.) Plaintiff stated that she suffered from migraines but reported "no current complaints." (R. at 649.) Plaintiff appeared well-developed with a normal gait. (R. at 651.)

         On February 15, 2011, Plaintiff treated for "syncope, nausea and vomiting, [and] headache." (R. at 645-48.) During this visit, Plaintiff reported a syncope event witnessed by her child. (R. at 645.) William Gwathmey, M.D., performed a physical examination and Plaintiff appeared well-oriented. (R. at 646-47.) Dr. Gwathmey referred Plaintiff to a neurologist and prescribed Bystolic and Maxalt for migraines. (R. at 647-48.) On February 23, 2011, Plaintiff saw James Grimson, M.D. (R. at 724.) Dr. Grimson analyzed a computed tomography ("CT") scan and noted "normal" results with "no evidence of mass ... or hemorrhage." (R. at 724.)

         On March 10, 2011, Noma Rehman, M.D., saw Plaintiff for a neurological assessment based on Dr. G\vathmey's referral. (R. at 654.) Plaintiff complained of "passing out spells [for the] last 3 month[s]," and a "total of four [syncope] episode[s]." (R. at 654.) Dr. Rehman noted that Plaintiff appeared oriented, well-nourished, and articulate, and reported normal physical examination results. (R. at 655.) Plaintiff displayed normal fund of knowlcdge with alert attention and concentration. (R. at 655.) Dr. Rehman noted that Plaintiffs reported symptoms appeared "suggestive of a complicated migraine." (R. at 655.)

         On April 11, 2011, Plaintiff returned to Dr. Gwathmey for syncope, nausea, vomiting and headache. (R. at 641-44.) Plaintiff reported that she experienced a syncope event witnessed by her child and boyfriend. (R. at 641.) Plaintiff also reported that her neurologist told her that "all of her tests had come back negative." (R. at 641.) Plaintiff could not remember when her headache symptoms began and stated that all physical examinations revealed "normal" results with articulate speech, no apparent distress, normal orientation and no memory loss. (R. at 641-43.)

         On April 21, 2011, Plaintiff returned to Dr. Rehman for a follow-up neurological examination. (R. at 657-59.) Plaintiff reported no syncope until 2011 and only one syncope event since March. (R. at 657.) Plaintiffs magnetic resonance imaging (UMRI") and electroencephalogram ("EEG") yielded normal results, and Plaintiff appeared alert and oriented. (R. at 658.)

         On May 12, 2011, Plaintiff saw Dr. Gwathmey again for syncope, nausea, vomiting and headaches. (R at 638-40.) On this visit, Plaintiff reported another syncope event witnessed by Plaintiffs child. (R. at 638.) Dr. Gwathmey noted normal neurological examination ...


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