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Suarez v. Berryhill

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

January 28, 2019

RAYMOND SUAREZ, pro se Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK UNITED STATES MAGISTRATE JUDGE

         On March 12, 2013, Plaintiff Raymond Suarez ("Plaintiff) protectively applied for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"), alleging disability from anxiety, depression, arthritis, vasovagal syncope, fibromyalgia, enlarged prostate due to chronic prostatitis, autonomic dysfunction and panic attacks, with an alleged onset date of May 28, 2010. 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. Plaintiff requested review by the Appeals Council, who ordered remand of Plaintiff s claim. Upon further consideration, the ALJ again denied Plaintiffs claim and the Appeals Council denied Plaintiffs request for review, rendering the ALJ's second decision as the final decision of the Commissioner ("Defendant").

         Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred by: (1) ignoring substantial evidence that Plaintiff qualified as disabled under Listings 12.04 and 12.06; (2) finding that Plaintiffs statements concerning the intensity, persistence and limiting effects of his symptoms did not comport with the evidence of record; (3) improperly applying the treating physicians rule to the opinions of Plaintiff s treating physicians and psychiatrists, Prakash Ettigi, M.D., Banerje Koduru, M.D., and Charles Brehmer, M.D.; (4) affording great weight to the opinion of Jeffrey Freemont, Ph.D., the medical expert ("ME") who testified during Plaintiffs August 17, 2017 hearing; (5) relying on the wrong hypothetical to reach her step-five determination that Plaintiff did not qualify as disabled; and, (6) failing to recuse herself as the ALJ. (Pl.'s Mot. Summ. J. & Br. in Supp. ("Pl.'s Mem.") (ECF No. 10) at 2-3.) 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. 10) 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 March 12, 2013, Plaintiff protectively applied for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"), alleging disability from anxiety, depression, arthritis, vasovagal syncope, [2] fibromyalgia, [3] enlarged prostate due to chronic prostatitis, [4] autonomic dysfunction[5] and panic attacks, with an alleged onset date of May 28, 2010. (R. at 454, 489.) The SSA denied Plaintiffs claim on August 21, 2013, and again upon reconsideration on December 27, 2013. (R. at 206-10, 212-14.) At Plaintiffs written request, the ALJ held a hearing on May 18, 2015. (R. at 103-30.) On June 4, 2015, the ALJ issued a written opinion, denying Plaintiffs claim and concluding that Plaintiff did not qualify as disabled under the Act. (R. at 203.) On December 5, 2016, the Appeals Council granted Plaintiffs request for review, explaining that the ALJ failed to provide an adequate evaluation of the opinion of James Sanderlin, M.D., a non-treating source. (R. at 203-04.) On remand, the Appeals Council instructed the ALJ to "give further consideration to [Plaintiffs] maximum residual functional capacity" and to "obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on [Plaintiffs] occupational base." (R. at 203-04.)

         Following remand, the ALJ held two more hearings: one on March 21, 2017, during which Plaintiff (then represented by counsel) testified; and, another on August 17, 2017, during which Plaintiff (again represented by counsel), a vocational expert ("VE") and a medical examiner ("ME") testified. (R. at 71-102, 131-65.) On November 14, 2017, the ALJ issued a written opinion, again denying Plaintiffs claim and concluding that Plaintiff did not qualify as disabled under the Act, because Plaintiff could perform jobs existing in significant numbers in the national economy during the relevant period. (R. at 24-25.) On January 27, 2018, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's second decision as the final decision of the Commissioner subject to review by this Court. (R. at 1-7.)

         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 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, 16 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, 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. NLRB, 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)(h). 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 residual functional capacity ("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

         Following remand by the Appeals Council, on March 21, 2017, the ALJ held a hearing during which Plaintiff (then-represented by counsel) testified. (R. at 71-102.) During the March 21 hearing, the ALJ and Plaintiffs attorney representative discussed the sparsity of Plaintiff s record. (R. at 98.) To better guide her decision, the ALJ decided to send Plaintiffs records to a ME for an opinion on the severity of Plaintiff s psychological condition, which the ME would offer at a subsequent hearing. (R. at 100-01.) On August 17, 2017, the ALJ convened a second hearing, during which Plaintiff (again represented by counsel), the ME and a VE testified. (R. at 131-65.) On November 14, 2017, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 11-26.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 14-25.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity between his alleged onset date of May 28, 2010, and his date last insured of September 30, 2016. (R. at 14.) At step two, the ALJ held that Plaintiff had the following severe impairments: post-traumatic degenerative joint disease in the right thumb, depression and anxiety disorder. (R. at 14-15.) At step three, the ALJ concluded that Plaintiff did not suffer from an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15.)

         In assessing Plaintiffs RFC, the ALJ found that, through the date last insured, Plaintiff could perform light work with additional limitations. (R. at 16.) Specifically, Plaintiff could only occasionally climb ramps and stairs and never climb ladders, ropes and scaffolds. (R. at 16.) Plaintiff could occasionally balance, stoop and crouch, but could never kneel or crawl. (R. at 16.) Plaintiff could frequently, though not constantly or repetitively, grasp, handle and finger with his right, dominant hand. (R. at 16.) And Plaintiff could not handle exposure to any workplace hazards. (R. at 16.) The ALJ concluded that Plaintiff could perform unskilled work with a specific vocational preparation ("SVP") of no more than two in a non-production-oriented work setting, with no public interaction and only occasional interaction with co-workers and supervisors. (R. at 16.)

         At step four, the ALJ determined that Plaintiff could not perform any past relevant work. (R. at 24.) However, at step five, the ALJ found that Plaintiff could perform jobs existing in significant numbers in the national economy, including work as a classifier (e.g., laundry sorter), router and cafeteria attendant. (R. at 24-25.) Accordingly, the ALJ concluded that, during the relevant period, Plaintiff did not qualify as disabled under the Act. (R. at 25.)

         IV. ANALYSIS

         Plaintiff, thirty-nine years old at the time of this Report and Recommendation, previously worked as a mechanic. (R. at 486, 491.) He applied for DIB, alleging disability from anxiety, depression, arthritis, vasovagal syncope, fibromyalgia, enlarged prostate due to chronic prostatitis, autonomic dysfunction and panic attacks, with an alleged onset date of May 28, 2010. (R. at 486, 489.) Plaintiff appeals to this Court, contending that the ALJ erred by: (1) ignoring substantial evidence that Plaintiff qualified as disabled under Listings 12.04 and 12.06; (2) finding that Plaintiffs statements concerning the intensity, persistence and limiting effects of his symptoms did not comport with the evidence of record; (3) improperly applying the treating physician rule to the opinions of Plaintiff s treating physicians and psychiatrists, Dr. Ettigi, Dr. Koduru, and Dr. Brehmer; (4) affording great weight to the opinion of Dr. Freemont, the ME who testified during Plaintiffs August 17, 2017 hearing; (5) relying on an incomplete hypothetical to reach her step-five determination that Plaintiff did not qualify as disabled; and, (6) failing to recuse herself as the ALJ. (Pl.'s Mem. at 2-3.) For the reasons set forth below, the ALJ did not err in her decision.

         A. Substantial Evidence Supports the ALJ's Finding that Plaintiffs Mental Impairments Did Not Meet or Medically Equal the Criteria of Listings 12.04 and 12.06.

         Plaintiff first challenges the ALJ's step-three determination that Plaintiffs mental impairments did not meet or medically equal the severity of the listed impairments in Listings 12.04 (depressive, bipolar and related disorders) and 12.06 (anxiety and obsessive-compulsive disorders). (Pl.'s Mem. at 2.) Specifically, Plaintiff contends that substantial evidence supports a finding that he qualified as disabled under those listings. (Pl.'s Mem. at 2.) Defendant responds that substantial evidence supports the ALJ's step-three conclusions and that it is not the role of this Court to reweigh the evidence on judicial review. (Def.'s Mot. Summ. J. & Br. in Supp. Thereof ("Def.'s Mem.") (ECF No. 11) at 18-22.) Because "[a]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision," Clarke, 843 F.2d at 272-73, the Court agrees with Defendant that it cannot and should not reweigh the evidence. Instead, the Court will consider only whether substantial evidence supports the ALJ's step-three conclusions.

         At step three, Plaintiff bears the burden of proving that he meets or medically equals a listing. Yuckert, 482 U.S. at 146 n.5. The listings "were designed to operate as a presumption of disability that makes further inquiry unnecessary" and, consequently, require an exacting standard of proof. Sullivan v. Zebley, 493 U.S. 521, 532-33 (1990.) "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Zebley, 493 U.S. at 530.

         Plaintiffs condition must satisfy all of the enumerated criteria in Listings 12.04 or 12.06 to qualify him as disabled at step three. Id. at 530. Specifically, to meet the requirements of Listing 12.04, Plaintiff must first provide medical documentation of either:

1. Depressive disorder, characterized by five or more of the following: a. Depressed mood; b. Diminished interest in almost all activities; c. Appetite disturbance with change in weight; d. Sleep disturbance; e. Observable psychomotor agitation or retardation; f. Decreased energy; g. Feelings of guilt or worthlessness; h. Difficulty concentrating or thinking; or, i. Thoughts of death or suicide. [OR]
2. Bipolar disorder, characterized by three or more of the following: a. Pressured speech; b. Flight of ideas; c. Inflated self-esteem; d. Decreased need for sleep; e. Distractibility; f. Involvement in activities that have a high probability of painful consequences that are not recognized; or, g. Increase in goal-directed activity or psychomotor agitation.

20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.04. For Listing 12.06, Plaintiff must provide medical documentation of either:

1. Anxiety disorder, characterized by three or more of the following: a. Restlessness; b. Easily fatigued; c. Difficulty concentrating; d. Irritability; e. Muscle tension; or, f. Sleep disturbance. [OR]
2. Panic disorder or agoraphobia, characterized by one or both: a. Panic attacks followed by persistent concern or worry about additional panic attacks or their consequences; or, b. Disproportionate fear or anxiety about at least two different situations (for example, using public transportation, being in a crowd, being in a line, being outside of your home, being in open spaces). [OR]
3. Obsessive-compulsive disorder, characterized by one or both: a. Involuntary, time-consuming preoccupation with intrusive, unwanted thoughts; or, b. Repetitive behaviors aimed at reducing anxiety.

Id. at 12.06.

         Upon presenting sufficient medical documentation of any of the disorders in either Listing 12.04 or 12.06, Plaintiff must then present documentation showing either:

B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):[6] 1. Understand, remember, or apply information (see 12:00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). [OR]
C. [That Plaintiffs] mental disorder in this listing category is "serious and persistent;" that is, [Plaintiff has] a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of [Plaintiff s] mental disorder (see 12.00G2b); and, 2. Marginal adjustment, that is, [Plaintiff has] minimal capacity to adapt to changes in [his] environment or to demands that are not already part of [his] daily life (see 12.00G2c).

Id. at 12.04, 12.06.

         Here, the ALJ determined that Plaintiffs mental impairments, both singly and in combination, failed to meet or medically equal the criteria of Listings 12.04 and 12.06. (R. at 15.) The ALJ first considered whether Plaintiffs impairments satisfied the requirements of Paragraph B in the respective listings, which require proof of either an extreme limitation in one, or marked limitations in two, enumerated areas of mental functioning. (R. at 15); 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.04B, 12.06B. The ALJ found that Plaintiff had only moderate limitation in his ability to understand, remember or apply information, noting that Plaintiffs records revealed decreased memory on some occasions but generally recorded normal functioning. (R. at 15.) The ALJ further noted evidence showing that Plaintiff had "fair to good judgment and superficial to fair insight." (R. at 15.) And the ALJ discredited Plaintiffs Montreal Cognitive Assessment ("MOCA") score from his consultative psychological examination, which indicated cognitive difficulties, explaining that the consultative examiner found the score invalid. (R. at 15, 875.)

         The ALJ also found only moderate limitation in Plaintiffs ability to interact with others. (R. at 15.) The ALJ noted Plaintiffs statements about his limited social life, but observed that Plaintiff repeatedly appeared "cooperative, pleasant, and polite" during appointments and exhibited mostly "good" eye contact. (R. at 15.)

         As to Plaintiffs ability to maintain concentration, persistence and pace, the ALJ likewise found only moderate limitation. (R. at 15.) The ALJ explained that the medical evidence of record revealed "varying levels of concentration and attention from good to poor." (R. at 15.) The ALJ heavily weighed Plaintiffs ability to correctly calculate five of five Serial Sevens[7]during one of his consultative psychological examinations, with the examiner further recording that Plaintiffs cognitive functioning appeared "broadly within normal limits." (R. at 15-16, 875.)

         As to Plaintiffs ability to adapt and manage himself, the ALJ again found only moderate limitation. (R. at 16.) The ALJ noted that Plaintiff testified to bathing himself and changing his own clothes once or twice a week. (R. at 16.) The ALJ also considered Plaintiffs testimony that he performed very little house and yard work. (R. at 16.) However, the ALJ explained that Plaintiffs records noted "varying hygiene and grooming from poor and disheveled to good," warranting the ALJ's moderate limitation finding. (R. at 16.)

         Because Plaintiff failed to establish that he suffered at least one extreme limitation or two marked limitations in the required areas of functioning, the ALJ concluded that Plaintiff did not satisfy Paragraph B of Listings 12.04 and 12.06. (R. at 16.) The ALJ then found that Plaintiff further failed to establish that he met the Paragraph C criteria under each listing, which required evidence of the persistence and seriousness of Plaintiff s impairments, including Plaintiffs minimal capacity to adapt to environmental changes and demands not already part of Plaintiff s daily life. (R. at 16); 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.04C, 12.06C. The ALJ explained that the record failed to show that Plaintiff could make only marginal adjustments, which precluded Plaintiff from satisfying the Paragraph C criteria. (R. at 16.) And the ALJ added that the opinions of the state agency psychological consultants agreed with her conclusions. (R. at 16.) With neither Paragraph B nor Paragraph C of Listings 12.04 and 12.06 satisfied, the ALJ concluded that Plaintiffs mental impairments did not meet or medically equal the criteria of those Listings. (R. at 15-16.) Substantial evidence supports the ALJ's step-three conclusions.

         1. Plaintiffs Objective Medical Records Support the ALJ's Step-Three Conclusions.

         Plaintiff has a lengthy medical record spanning from 1997 to 2017, a substantial portion of which describes Plaintiffs condition from before his alleged onset date of May 28, 2010. (R. at 486.) A review of the entire medical record provides substantial evidence to support the ALJ's step-three conclusions.

         For one, Plaintiffs records support the ALJ's finding that Plaintiff experienced only moderate limitations in his ability to understand, remember or apply information. (R. at 15.) Plaintiffs physicians and psychiatrists repeatedly reported that Plaintiff demonstrated normal or intact memory. (R. at 773, 867-68, 880, 882, 886, 898, 914-15, 988.) Plaintiff also exhibited the ability to process thoughts logically and without limitation. (R. at 869 (noting "organized" thought processes in June 2013), 870 (same in April 2013), 880 (same in November 2013), 881 (same in January 2014), 886 (noting "intact" thought processes in March 2015), 914-15 (noting "logical" thought processes at four appointments between June 2012 and January 2013), 987 (noting normal thought processes in November 2016), 988 (same in August 2016).) And Plaintiff retained reality-based thought content with no signs of hallucinations or delusions throughout his psychiatric treatment. (R. at 867-68, 870, 879-81.) Importantly, although Plaintiff sometimes displayed slowed psychomotor functioning, the longitudinal record reveals that Plaintiff maintained generally normal and intact psychomotor capabilities. (R. at 867 (noting "normal" psychomotor functioning in August 2013), 868 (same in July 2013), 869 (same in June 2013), 870 (same in April 2013), 871 (same in March 2013), 879 (same in October 2013), 880 (noting "psychomotor retardation" in November 2013), 881 (noting "normal" psychomotor functioning in January 2014), 882 (noting "psychomotor retardation" in March 2014), 884 (noting "normal" psychomotor functioning in August 2014), 885 (same in December 2014), 886 (same in March 2015), 898 (same in November 2015), 899 (same in August 2015), 900 (same in June 2015), 987 (noting "ok" psychomotor functioning in November 2016), 988 (same in August 2016).) And, as the ALJ correctly noted, Plaintiff frequently exhibited fair to good judgment and insight. (R. at 15, 867-68, 880-83, 885-86, 898, 900, 914-15, 987-88.)

         Plaintiffs treatment records likewise bolster the ALJ's finding of moderate limitation in Plaintiffs ability to interact with others. (R. at 15.) As the ALJ correctly noted, Plaintiffs physicians and psychiatrists repeatedly described him as cooperative. (R. at 15, 730, 885, 898-900, 987-88, 1001.) Plaintiff also exhibited appropriate eye contact throughout the record. (R. at 882-83, 885-86, 898-900, 1001.) And, on April 4, 2017, Plaintiffs psychiatrist noted that Plaintiff could speak logically and articulately, and that Plaintiff understood boundaries. (R. at 1001.)

         As to Plaintiffs ability to maintain concentration, persistence and pace, Plaintiffs physicians and psychiatrists frequently described his concentration as fair or good. (R. at 867-68, 879-81.) Plaintiff also appeared alert or oriented during nearly every appointment on record. (R. at 642-43, 649, 670, 674, 679, 681, 688, 696, 698, 704, 710, 863, 869-70, 882-83, 898-99, 987-88, 1001.) And, as mentioned, Plaintiff repeatedly demonstrated normal and intact memory, (R. at 773, ...


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