Opinion
C/A No. 2:16-cv-03437-JMC-MGB
01-16-2018
LAURIE HOPE YOUNG, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Laurie Hope Young, through counsel, brought this action to obtain judicial review of an unfavorable final administrative decision denying benefits on her September 25, 2012 application for Disability Insurance Benefits ("DIB") and February 18, 2015 application for Supplemental Security Income ("SSI") under the Social Security Act ("Act"). See Section 205(g) of the SSA, as amended, 42 U.S.C. Section 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons stated herein, the undersigned recommends that the Commissioner's decision be affirmed.
Procedural History and ALJ's Findings
The Plaintiff was born July 23, 1973 and was 37 years old on the alleged onset of disability date, October 1, 2010. (R. 154.) The Plaintiff filed for DIB on September 25, 2012, and SSI on February 18, 2015. (R. 154, 15.) The Plaintiff claimed disability due to acute pancreatitis and diabetic neuropathy. (R. 191.) The Plaintiff's claims were initially denied and denied on reconsideration. (R. 86-87.) Following a hearing, the Administrative Law Judge (ALJ) denied her claim on March 26, 2015. (R. 15-26.) The Plaintiff has exhausted her administrative remedies. The ALJ's decision is now the Commissioner's final action for purposes of judicial review. In making the determination that the Plaintiff is not entitled to benefits, the Commissioner adopted the following findings of the ALJ's March 26, 2016 Decision:
(1) The claimant meets the insured status requirements of the Social Security Act through June 30, 2014.(R. 15-26.)
(2) The claimant engaged in substantial gainful activity during the following periods: February 2011 through April 2011 (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).
(3) Notwithstanding that work, however, there has been a continuous 12-month period(s) during which the claimant did not engage in substantial gainful activity. The remaining findings address the period(s) the claimant did not engage in substantial gainful activity.
(4) The claimant has the following severe impairments: chronic non-alcoholic pancreatitis and insulin dependent diabetes mellitus (IDDM) with neuropathy (20 CFR 404.1520(c) and 416.920(c)).
(5) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(6) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she cannot stand or walk over two hours (in the aggregate) in an eight-hour workday, can sit at least six hours in an eight-hour workday, and she is limited to occasional stooping, balancing, crouching, kneeling, and climbing of stairs and ramps. She cannot crawl or climb ladders, ropes, or scaffolds, and she has no more than frequent use of bilateral hands for fine motor tasks.
(7) The claimant is capable of performing past relevant work as a customer service representative. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
(8) The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2010, through the date of this decision (20 CFR 404.1520(1) and 416.920(1)).
Applicable Law
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act as the inability 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" twelve months. See 42 U.S.C. § 423(d)(1)(A) (definition used in the DIB context); 42 U.S.C. § 1382c(a)(3)(A) (definition used in the SSI context).
"[T]he definition of disability is the same under both DIB and SSI . . . ." Mason v. Colvin, C/A No. 9:12-CV-1157-TLW-BM, 2013 WL 4042188, at *2 n.2 (D.S.C. Aug. 8, 2013) (citing Emberlin v. Astrue, C/A No. 06-CV-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
The undersigned notes that the "Treating Physician Rule," which applies in the instant action, applies only to claims filed before March 27, 2017. See 20 C.F.R. § 404.1520c; see also Marshall v. Berryhill, Civ. A. No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if she can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i). She must make a prima facie showing of disability by showing that she is unable to return to her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Once an individual has established an inability to return to her past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the regional economy. See Grant, 699 F.2d at 191. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert ("VE"). Id. at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).
Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that her conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
The Plaintiff asserts the ALJ erred in the following three ways:
1. The weight given by the ALJ to the opinion of Dr. Bouknight, the Plaintiff's treating physician.(Dkt. No. 8.)
2. The ALJ's analysis of the Plaintiff's depression
3. The vocational expert's ("VE") testimony at the administrative hearing was inconsistent with the Dictionary of Occupational Titles ("DOT")
1. Weight Given to Treating Physician's Opinion
The Plaintiff argues that the ALJ erred by "downplay[ing]" a letter from the Plaintiff's treating physician, Dr. Daniel P. Bouknight. (Dkt. No. 8.) The regulations direct that ALJs accord controlling weight to treating physicians' opinions that are well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2); see also Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 268 (4th Cir. 2017). If a treating source's opinion is not well-supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight.1 SSR 96-2p.
The ALJ's consideration of a treating source's opinion does not end with a finding that it is not entitled to controlling weight. The ALJ must still proceed to weigh the treating physician's opinion and all other medical opinions of record based on the factors in 20 C.F.R. § 404.1527(c). Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). These factors include (1) the examining relationship between the claimant and the medical provider; (2) the treatment relationship between the claimant and the medical provider, including the length of the treatment relationship and frequency of treatment and the nature and extent of the treatment relationship; (3) the supportability of the medical provider's opinion in his or her own treatment records; (4) the consistency of the medical opinion with other evidence in the record; and (5) the specialization of the source offering the opinion. Id.; 20 C.F.R. § 404.1527(c).
An ALJ has a duty to provide "specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record" and his explanation "must be sufficiently specific to make clear to any subsequent reviewers the weight [he] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p. The court should not disturb an ALJ's determination as to the weight to be assigned to a medical source opinion "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam); see also Dunn v. Colvin, 607 F. App'x 264, 267 (4th Cir. 2015).
Dr. Bouknight's letter is a two-paragraph narrative. (R. 862.) Dr. Bouknight is a cardiologist who has treated the Plaintiff since 2004. (Id.) The letter opined that the Plaintiff is totally disabled because of her hereditary issues with lipids and "frequent, severe and chronic pancreatitis." (Id.) Dr. Bouknight additionally noted that he treated the Plaintiff for chronic chest pain. (Id.) The ALJ gave Dr. Bouknight's letter "little weight" because the letter did not contain a function-by-function analysis, addressed only the ultimate issue of disability, and was not consistent with the Plaintiff's treatment records. (R. 24.)
Whether a claimant is disabled is an issue reserved to the Commissioner. Titles II & Xvi: Med. Source Opinions on Issues Reserved to the Comm'r, SSR 96-5P (S.S.A. July 2, 1996). A treating physician's opinion on such issues is not entitled to "any special significance," Sampson v. Colvin, No. 5:13-733, 2014 WL 3828902, at *11 (D.S.C. Aug. 4, 2014), nor "any heightened evidentiary value." Crocker v. Colvin, No. 1:15 1215, 2016 WL 1626591, at *16-17 (E.D. Va. Apr. 21, 2016). Dr. Bouknight's letter is a general statement that the Plaintiff is disabled because of her conditions. The letter does not contain any medical evidence or tests to support this conclusion.
The ALJ found that "the claimant's treatment records do not justify such a severe limitation" as contained in Dr. Bouknight's letter. (R. 24.) The ALJ found that the Plaintiff had a history of non-compliance with medications and dietary restrictions when managing her pancreatitis and diabetes and that her conditions improved when she was compliant. (R. 25.) The record supports the ALJ's finding. The Plaintiff testified that she was compliant with her dietary restrictions "to a certain extent." (R. 59.) Her records from the emergency room in 2012 noted that she had a known history of dietary indiscretion and had eaten birthday cake the night before she had severe abdominal pain. (R. 288-89.) Her medical records specifically stated that her pancreatitis historically flares when she is off of her medications. (R. 359, 361.) Dr. Bouknight's notes from a 2010 appointment stated, "We had a long discussion today about medication compliance since she has neglected to take her TriCor in the past, which is probably contributing to her triglycerides being elevated above 5000 during her hospital admission." (R. 547.) Treatment records from February and May of 2013 noted that the Plaintiff had not been following her diabetic diet and medications. (R. 592, 659.) The Plaintiff told Dr. Bouknight that her symptoms lessened when she avoided meat. (R. 531.) The Plaintiff had not been hospitalized for a prolonged time since 2006 and her most recent flare up from pancreatitis occurred ten months before her hearing before the ALJ. (R. 592, 43.) At her hearing, the Plaintiff could not recall when a flare up occurred prior to the flare up that occurred ten months before the hearing. (Id.) The ALJ relied on the numerous instances of noncompliance by the Plaintiff in the record and the clear improvement the Plaintiff had when she was compliant when weighing Dr. Bouknight's letter. This court finds that substantial evidence supports the little weight given by the ALJ to Dr. Bouknight's letter.
The Plaintiff submitted evidence of a hospital visit that occurred in July, 2016 to the Appeals Council. (Dkt. No. 8 at 2.) The ALJ's decision was released on May 26, 2015. (R. 26.) To justify remand based on new evidence submitted to the Appeals Council, a Plaintiff must show four factors including that "the evidence relates to the period on or before the date of the ALJ's decision...." Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir.1991). Records from a hospital visit that occurred over a year after the ALJ's decision was released do not relate to the period on or before the date of the ALJ's decision. --------
2. The ALJ's Analysis of the Plaintiff's Depression
The Plaintiff contends that the ALJ's decision was "contradictory" in regards to the Plaintiff's depression. (Dkt. No. 8 at 3-4.) The Plaintiff argues a contradiction exists between page 9 of the decision, where according to the Plaintiff the ALJ found the Plaintiff "should receive further treatment for her depression," and on page 11, where the ALJ found her depression to be not debilitating. (Id.) As an initial matter this court does not readily understand how the ALJ's findings regarding her depression are "contradictory."
A diagnosis of depression alone is not disabling. Jones v. Colvin, No. 6:14-cv-01328-RBH, 2015 WL 4095863, at *14 (D.S.C. July 6, 2015). "There must be a showing of related functional loss." Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir.1986). The Plaintiff must show a functional loss to prove disability, not a mere diagnosis of a condition. Rouse v. Colvin, No. 0:11-cv-2636-MGL, 2013 WL 6050163, at *5 (D.S.C. Nov. 14, 2013) (quoting Gross, 785 F.2d at 1166). "If a symptom can be reasonably controlled by medication or treatment, it is not disabling." Gross, 785 F.2d at 1166; see also McCullough v. Colvin, No. 1:12-cv-208-MGL-SVH, 2013 WL 2285919, *5 (D.S.C. 2013) (ALJ properly considered "improvement while on medication").
The Plaintiff took Lexapro for six months in 2007, but stopped taking it because she "was better." (R. 595.) She took Lexapro again starting in May 2013 when she went to the hospital for abdominal pain, at which time she "had many complaints during her stay here, which were unreasonable" (R. 595-96). Plaintiff denied a psychiatric consultation at that time (Id.) She continued taking Lexapro thereafter. (R. 659, 794, 815.) The Plaintiff does not require any counseling or treatment beyond Lexapro prescribed by her regular doctor. (R. 56.) State agency psychologists Drs. Goots and Boland found that the evidence did not support a finding of a severe mental medically determinable impairment (R. 24, 81-83, 96). The undersigned does not see any inconsistency with the ALJ's determination that the Plaintiff's depression was non-severe and finds that the ALJ's decision is supported by substantial evidence.
3. Vocational Expert's Testimony
The court finds that the Plaintiff's third assignment of error is moot. The Plaintiff argues that the VE improperly testified that the Plaintiff could work as an "addresser," but that this job requires the use of hands and fingers, which the Plaintiff cannot use. (Dkt. No. 8.) The ALJ found that the Plaintiff could return to her past relevant work as a customer service representative at step four of sequential process. (R. 25.) The Plaintiff's argument relates to step five, which the ALJ did not reach. The ALJ never mentioned or relied on the VE's testimony regarding an addresser because the ALJ found the Plaintiff could perform past relevant work at step four in the sequential process. Therefore, the Plaintiff's argument is moot.
Recommendation
Wherefore, based upon the foregoing, the court recommends that the Commissioner's decision be AFFIRMED,
IT IS SO RECOMMENDED. January 16, 2018 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE