Hood v. Astrue, No. 3:2007cv00641 - Document 22 (S.D.W. Va. 2010)
Court Description: MEMORANDUM OPINION After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision Is supported by substantial evidence; accordingly, by Judgment Order entered this day, the final decision of the Commissioner is Affirmed and this Matter is Dismissed from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 11/3/2010. (cc: attys; any unrepresented party) (skm)
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Hood v. Astrue Doc. 22 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION PEGGY A. HOOD, Plaintiff, v. CIVIL ACTION NO. 3:0 7-0 0 641 MICHAEL J . ASTRUE, Com m issioner of the Social Security Adm inistration, Defendant. MEMORAN D U M OPIN ION This is an action seeking review of the decision of the Com m issioner of Social Security (hereinafter “Com m issioner”) denying Claim ant’s applications for disabled widow’s insurance benefits (“DIB”) and supplem ental security incom e (“SSI”), under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 40 1-433, 1381-1383f. (Docket No. 2). Both parties have consented in writing to a decision by the United States Magistrate J udge. (Docket Nos. 6 and 7). I. Pro ce d u ral H is to ry Plaintiff, Peggy Ann Hood (hereinafter “Claim ant”), filed applications for SSI on J une 8, 20 0 4 (Tr. at 394-396) 1 and DIB on Decem ber 29, 20 0 4 (Tr. at 61-63), alleging disability as of Decem ber 13, 1983, due to the following conditions: bulging discs; arthritis in her knees, neck, hands, and elbows; speech difficulties; a learning disability; 1 Claim ant signed and dated the Application J une 9, 20 0 4. However, the Court determ ines the correct date to be J une 8, 20 0 4, based on the date stam p appearing at the top of each page of the docum ent. 1 Dockets.Justia.com a hiatal hernia; depression; and high blood pressure (Tr. at 83-90 ). The claim s were denied initially (Tr. at 398-40 0 ) 2 and upon reconsideration (Tr. at 40 4-40 6 and 43-45). Thereafter, Claim ant requested an adm inistrative hearing. (Tr. at 46). The hearing was held on J une 8, 20 0 6 before an Adm inistrative Law J udge, the Honorable J am es D. Kem per, J r. (hereinafter referred to as the “ALJ ”). (Tr. at 40 7-444). By decision dated April 26, 20 0 7, the ALJ determ ined that Claim ant was not entitled to benefits. (Tr. at 11-26). Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(i), a claim ant for disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any m edically determ inable im pairm ent which can be expected to last for a continuous period of not less than 12 m onths” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations establish a “sequential evaluation” for the adjudication of disability claim s. 20 C.F.R. §§ 40 4.1520 , 416.920 (20 0 6). If an individual is found “not disabled” at any step, further inquiry is unnecessary. §§ Id. 40 4.1520 (a), 416.920 (a). The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful em ploym ent. Id. §§ 40 4.1520 (b), 416.920 (b). If the claim ant is not engaged in substantial gainful em ploym ent, the second inquiry is whether claim ant suffers from a severe im pairm ent. Id. §§ 40 4.1520 (c), 416.920 (c). If a severe im pairm ent is present, the third inquiry is whether such im pairm ent m eets or equals any of the 2 Only the docum entation of the initial denial of Claim ant’s SSI Claim appears in the Social Security Transcript. The docum entation of the denial of Claimant’s DIB Claim is absent. 2 im pairm ents listed in Appendix 1 to Subpart P of the Adm inistrative Regulations No. 4. Id. §§ 40 4.1520 (d), 416.920 (d). If it does, the claim ant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the claim ant's im pairm ents prevent the perform ance of past relevant work. Id. §§ 40 4.1520 (e), 416.920 (e). By satisfying inquiry four, the claim ant establishes a prim a facie case of disability. Hall v. Harris, 658 F.2d 260 , 264 (4th Cir. 1981). The burden then shifts to the Com m issioner, McLain v. Schw eiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claim ant is able to perform other form s of substantial gainful activity, considering claim ant's rem aining physical and m ental capacities and claimant's age, education and prior work experience. 20 C.F.R. §§ 40 4.1520 (f), 416.920 (f) (20 0 6). The Com m issioner m ust show two things: (1) that the claim ant, considering claim ant’s age, education, work experience, skills and physical shortcom ings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national econom y. McLam ore v. W einberger, 538 F.2d 572, 574 (4th Cir. 1976). In this particular case, the ALJ determ ined that Claim ant m et the non-disability requirem ents for disabled widow’s benefits set forth in § 20 2(e) of the Social Security Act because she was the unm arried widow of the deceased insured worker and had attained the age of 50 . (Tr. at 16, Finding No. 1). Claim ant’s prescribed period for benefits will end on May 31, 20 11; thus, she m ust prove that she was disabled on or before that date. (Id. at Finding No. 2). The ALJ found that Claim ant satisfied the first inquiry because she had not engaged in substantial gainful activity since the alleged 3 onset date. (Id. at Finding No. 3).3 Under the second inquiry, the ALJ found that Claim ant suffered from four severe im pairm ents: chronic back pain secondary to degenerative disc disease, osteoarthritis of the right knee, depression, and borderline intellectual functioning. (Id. at Finding No. 4). At the third inquiry, the ALJ concluded that Claim ant’s im pairm ents did not m eet or equal the level of severity of any listing in Appendix 1. (Id. at Finding No. 5). The ALJ then found that Claim ant had a residual functional capacity (hereinafter referred to as “RFC”) for light work, reduced by exertional and nonexertional lim itations. (Id. at Finding No. 6). As a result, Claim ant could not return to her past relevant work. (Id. at Finding No. 7).4 The ALJ found that Claim ant was defined as an individual “closely approaching advanced age,” that she had at least a high school education, and that she could com m unicate in English. (Id. at Finding Nos. 8 and 9). Therefore, he concluded that transferability of job skills was not m aterial to determ ining disability because the Medical-Vocational Rules supported a finding that Claim ant was not disabled regardless of whether she had transferable job skills. (Id. at Finding No. 10 ).5 Based on the evidence and the testim ony of a vocational expert, the ALJ concluded that Claim ant 3 Although Claim ant worked as a sales associate from J uly 1999 through Septem ber 20 0 0 , as a m edical billing clerk from J anuary 20 0 1 through May 20 0 1, and as a cashier from J une 20 0 2 through J uly 20 0 2, the ALJ afforded Claim ant the “benefit of the doubt” in finding that that those periods constituted unsuccessful work attem pts and did not dem onstrate actual substantial gainful activity. (Tr. at 16, Finding No. 3). 4 The vocational expert testified at the adm inistrative hearing that Claim ant could return to her past work as a m edical billing clerk. However, the ALJ concluded that Claim ant’s em ployment as a m edical billing clerk constituted an unsuccessful work attem pt, not actual substantial gainful activity, and thus, it did not qualify as past relevant work. (Tr. at 16, Finding No. 7). 5 The Medical-Vocational Rules appear at 20 C.F.R. Part 40 4, Subpart P, Appendix 2. 4 could perform jobs such as house sitter/ com panion, grader/ sorter, bench worker, and inform ation clerk, which exist in significant num bers in the national and regional econom y. (Id. at Finding No. 11). On this basis, the ALJ denied benefits. (Tr. at 26). On August 14, 20 0 7, the Appeals Council denied Claim ant’s request for review, m aking the above ALJ Decision the final decision of the Com m issioner of Social Security. (Tr. at 4-6). On October 15, 20 0 7, Claim ant filed the present action seeking judicial review of the adm inistrative decision pursuant to 42 U.S.C. § 40 5(g) and applied to proceed without prepaym ent of fees or costs. (Docket Nos. 2 and 1). Her application to proceed without prepaym ent of costs and fees was granted on May 18, 20 0 9. (Docket No. 8). On J uly 14, 20 0 9, the Com m issioner m oved to voluntarily rem and the case pursuant to the sixth sentence of 42 U.S.C. § 40 5(g) because he could not locate the claim file of the ALJ ’s decision and was thus unable to produce a com plete adm inistrative record. (Docket No. 10 ). The Motion was granted. (Docket No. 11). On J uly 23, 20 0 9, the Com m issioner m oved to vacate the Order granting rem and because the claim file was located. (Docket No. 12). This Motion was granted and the case was reinstated to the active docket. (Docket No. 14). On J uly 24, 20 0 9, the Com m issioner filed his Answer to the Com plaint. (Docket No. 15). On March 15, 20 10 , the Court ordered Claim ant to file her brief in support of the Com plaint, which was due on August 24, 20 0 9. (Docket No. 16). Claim ant filed her brief on March 21, 20 10 and the Com m issioner filed his brief on April 21, 20 10 . (Docket Nos. 17 and 18). The m atter is therefore ripe for resolution. 5 II. Sco p e o f Re vie w The sole issue before this Court is whether the final decision of the Com m issioner denying Claim ant’s applications for benefits is supported by substantial evidence. In Blalock v. Richardson, substantial evidence was defined as the following: Evidence which a reasoning m ind would accept as sufficient to support a particular conclusion. It consists of m ore than a m ere scintilla of evidence but m ay be som ewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972), quoting Law s v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966). Additionally, the Com m issioner, not the court, is charged with resolving conflicts in the evidence. Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). The Court will not re-weigh conflicting evidence, m ake credibility determ inations, or substitute its judgm ent for that of the Com m issioner. Id. However, the Court m ust not abdicate its “traditional function” or “escape [its] duty to scrutinize the record as a whole to determ ine whether the conclusions reached are rational.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). The ultim ate question for the Court is whether the decision of the Com m issioner is well-grounded, bearing in m ind that “[w]here conflicting evidence allows reasonable m inds to differ as to whether a claim ant is disabled, the responsibility for that decision falls on the [Com m issioner].” W alker v. Bow en, 834 F.2d 635, 640 (7th Cir. 1987). A careful review of the record reveals that the Decision of the Com m issioner is supported by substantial evidence. 6 III. Claim an t’s Backgro u n d Claim ant was 51 years old at the tim e of the adm inistrative hearing. (Tr. at 40 9). She com pleted one year of business school. (Tr. at 410 ). Her past relevant work experience included em ploym ent as a m edical biller and as a cashier at a sewing and crafts store. (Tr. at 410 -412). She left her final job in order to care for her husband who was ill. (Tr. at 412). IV. Th e Me d ical Re co rd The Court has reviewed all evidence of record, including the m edical evidence of record. The record includes m edical evidence which was received prior to the adm inistrative hearing and evidence which was received subsequent to the hearing. All such evidence was considered by the ALJ in issuing his decision on April 26, 20 0 7. a. Evid e n ce Re ce ive d Prio r to th e H e arin g On Septem ber 11, 1998, Rafia Haque, M.D., evaluated Claim ant for back pain. (Tr. at 139-140 ). A Com puted Tom ography (hereinafter “CT”) scan showed disc protrusion at L5-S1 and possible disc protrusion toward the right posterior. (Tr. at 140 ). On Septem ber 5, 20 0 1, Claim ant was seen as new patient by Terrence W. Triplett, M.D., at Ultim ate Health Services, Inc. (Tr. at 328). Dr. Triplett noted that Claim ant had “chronic ear popping and itching as her active problem s,” but that a review of her system s was “otherwise negative” and that he would see her again in six m onths. Id. On April 15, 20 0 2, William Given, M.A., conducted a consultative exam ination. (Tr. at 141-148). Claim ant was given a Wechsler Adult Intelligence Scale-III (WAIS-III) 7 assessm ent and she achieved a verbal IQ score of 72, a perform ance IQ score of 83, and a full scale IQ score of 75. (Tr. at 143). Mr. Given stated: [Claim ant’s full scale IQ was at] the 5th percentile range and in the borderline range of intelligence. However, differences between the IQs and Index Scores suggest that all of these scores must be considered to best understand her overall functioning…Much of the difference in her scores is due to lim ited efficiency on tasks reflecting higher-level concentration…She displayed relatively strong auditory m em ory, and visual m em ory was nearly as well developed. Screening of academ ic skills revealed a borderline deficit in m athem atics. Other skills were developed consistently with intellectual functioning, but she failed to achieve literacy levels in reading, and barely achieved that level in writing…Observations and patterns suggest the following disorders: Learning Disorder, NOS; Expressive Language Disorder; Phonological Disorder…The disorders are thought to be at least m oderate in severity, and will ham per her considerably in form al training and work settings. (Tr. at 146). During the period of October 21, 20 0 3 through J anuary 4, 20 0 5, Ebenezer Medical Outreach listed Claim ant’s m edical issues as anxiety/ depression, hypertension, chronic low back pain, a hiatal hernia, a gastric ulcer, diverticulitis, and a fam ily history of breast cancer through her m other. (Tr. at 210 , 20 0 ). At various points throughout this period, Claim ant was prescribed Atacand, Effexor, Vioxx, Norflex, Ultram , Claritin, Celebrex, and Nexium .6 Id. On March 18, 20 0 3 through August 23, 20 0 4, Claim ant received physical therapy from Westm oreland Physical Therapy. (Tr. at 162-172). Her final evaluation stated that Claim ant received five treatm ents and failed to appear for subsequent sessions. (Tr. at 6 These m edications are generally prescribed for the following purposes: Atacand for hypertension; Effexor for anxiety/ depression; Vioxx and Celebrex for arthritis; Norflex and Ultram for m uscle pain and stiffness; Claritin for allergies; and Nexium for gastrointestinal issues. 8 64). The only abnorm al finding concerned Claim ant’s range of m otion of her back. (Tr. at 163). On August 20 , 20 0 4, Brian Bailey, M.A., conducted a consultative exam ination. (Tr. at 156-161). Claim ant was referred to Mr. Bailey from the Departm ent of Disability Services (hereinafter “DDS”) for an evaluation to assist in the determ ination of her eligibility for Social Security benefits. (Tr. at 156). The inform ation used in the exam ination was provided solely by Claim ant and she was deem ed a reliable inform ant. Id. Mr. Bailey diagnosed Claim ant with Major Depressive Disorder, Single Episode, Moderate; Phonological Disorder; and Maladaptive Health Behaviors, such as lack of exercise affecting obesity and hypertension. (Tr. at 160 ). On August 17, 20 0 4, Rodolfo Gobunsuy, M.D., conducted a consultative exam ination. (Tr. at 149-155). Claim ant was told to have bulging discs and arthritis based on a CAT scan and x-ray of her lum bar spine. (Tr. at 151). She also had arthritic changes in her knees; radicular sym ptom s down her left leg consistent with lum bar disc disease; lim ited anterior bending of the lum bar spine due to her obese abdom en, but straight leg raising was satisfactory; sym ptom s of carpel tunnel syndrom e; no Tinel sign, but positive Phalen sign; and no problem s using her hands. Id. On October 6, 20 0 4, DDS physician, J oseph Kuzniar, Ed.D., com pleted a Psychiatric Review Technique Form , assessing Claim ant’s m ental condition dating back to J une 7, 20 0 4. (Tr. at 181-194). Dr. Kuzniar found that Claim ant suffered from two m ental disorders: (1) an organic m ental im pairm ent as evidenced by a phonological disorder and (2) an affective disorder characterized by disturbance of m ood, 9 accom panied by depressive syndrom e, as evidenced by anhedonia (pervasive loss of interest in alm ost all activities), sleep disturbance, decreased energy, and difficulty concentrating or thinking. (Tr. at 181-184). He found that Claim ant did not suffer from any other m ental disorders. (Tr. at 182-190 ). On a scale of “none,” “m ild,” “m oderate,” “m arked,” and “extrem e,” Dr. Kuzniar rated Claim ant m ildly restricted in activities of daily living and m aintaining social functioning; m oderately lim ited in m aintaining concentration, persistence, or pace; and that there were no episodes of decom pensation of extended duration. (Tr. at 191). On the sam e date, Dr. Kuzniar com pleted a RFC Assessm ent Form . (Tr. at 195198). On a scale of “not significantly lim ited,” “m oderately lim ited,” “m arkedly lim ited,” and “no evidence of a lim itation,” he found the following: Claim ant was “not significantly lim ited” in her ability to rem em ber locations and work-like procedures; perform activities within a schedule, m aintain regular attendance, and be punctual within custom ary tolerances; work in coordination with or proxim ity of others without being distracted by them ; com plete a norm al workday and workweek without interruptions from psychologically based sym ptom s and to perform at a consistent pace without an unreasonable num ber and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extrem es; respond appropriately to changes in the work setting; travel in unfam iliar places or use public transportation; and set realistic goals or m ake plans independently of others. Claim ant was “m oderately lim ited” in her ability to understand, rem em ber, and carry out detailed instructions and m aintain attention and concentration for extended periods. There was “no evidence” that Claim ant was lim ited in her ability to understand, rem em ber, and carry out very short and sim ple instructions; sustain an ordinary routine without special supervision; m ake sim ple work-related decisions; ask sim ple questions or request assistance; m aintain socially appropriate behavior 10 and adhere to basic standards of neatness and cleanliness; and be aware of norm al hazards to take appropriate precautions. (Tr. at 195-196). On Septem ber 7, 20 0 4, DDS physician, Atiya Lateef, M.D., com pleted a Physical RFC Assessm ent Form , assessing Claim ant’s “current” condition. (Tr. at 173-180 ). Dr. Lateef listed Claim ant prim ary diagnosis as “DJ D L/ S Spine,” which the Court interprets as Degenerative J oint Disease of the lum brosacral spine; her secondary diagnosis as “DJ D” of the knees and m orbid obesity; and her other alleged im pairm ents as hypertension, depression, gastrointestinal reflux disease, and temporom andibular joint syndrom e. (Tr. at 173). In rating Claim ant’s exertional lim itations Dr. Lateef found that Claim ant could do the following: Occasionally lift 20 pounds Frequently lift 10 pounds Stand and/ or walk with norm al breaks for at least 2 hours in an 8-hour workday Sit with norm al breaks for about 6 hours in an 8-hour workday Push and/ or pull an unlim ited amount, other than as shown for lift and/ or carry (Tr. at 174). In the section where Dr. Lateef was asked to explain how and why the evidence supported her conclusions and the specific facts upon which her conclusions were based, she stated: Walks steadily without lim p or antalgia. Extrem ities revealed fine varicose veins [with] + 1 edem a. Distal pulses are intact. Neuro- no m uscle weakness or atrophy. Cranial nerves II-XII- grossly intact. Lum bar spine is tender [at] the lower lum bar to the upper sacral. The knees have crepitations, m ore on the [left] side, and the [left] knee is tender m edially and laterally. She has radicular sym ptom s, down to her [left] leg consistent with lum bar disc disease. Anterior bending of the lum bar spine is lim ited as her abdom en is obese but SLR is satisfactory. 11 X-ray [left] knee- m oderate degenerative arthritis of the knee joint. Lum bar- narrowing L5-S1, L4-L5, L2-L3. (Tr. at 174-175). In evaluating Claim ant’s postural lim itations, Dr. Lateef found that Claim ant could “occasionally” clim b, balance, stoop, kneel, crouch, and crawl. (Tr. at 175). Claim ant had no m anipulative, visual, com m unicative, or environm ental lim itations. (Tr. at 176-177). There were no treating or exam ining source statem ents in the file from which Dr. Lateef based her conclusions. (Tr. at 179). On J anuary 11, 20 0 5, Licensed Psychologist Kelly Daniel, M.A., evaluated Claim ant’s intellectual functioning, finding the following, as sum m arized by the Court: Claim ant was cooperative, able to m aintain attention, tearful regarding som e of her history the recent loss of her Husband. She reported that she was “held back” in the second grade and was in special reading and m ath classes at tim es, but that she graduated from high school. Claim ant’s verbal IQ score was 77, which fell in the borderline m entally retarded range; her perform ance IQ was 84, which was in the low average range; and her full scale IQ was 78, which was in the borderline intellectual functioning range. The results were believed to be accurate. It appeared that Claim ant was able to com prehend inform ation at a low average level, but could not retain the inform ation and m anipulate it as necessary to perform arithm etic well. In addition, she would have trouble retaining and repeating inform ation if required to incorporate it with other inform ation, which is a skill at the m ildly m entally retarded range. (Tr. at 267-268). On J anuary 13, 20 0 5, Kelly M. Dick, M.A., a supervised psychologist at University Psychiatric Associates conducted an initial intake interview, noting the following: Claim ant spoke in a norm al m anner without stam m ering or stuttering; her speech was a norm al rate, tone, and pace; she was oriented to person, place, tim e, and situation; her speech and m anner were not bizarre; receptive and expressive language seem ed unim paired. 12 Claim ant’s thoughts and associations were logical and coherent; she was able to sustain reasonable attention; however, she described her attention and concentration as poor. Ms. Dick’s diagnostic im pression was “Major Depressive Disorder, Recurrent, Moderate” and she needed to rule out anxiety disorder. (Tr. at 262-266). On February 18, 20 0 5, University Psychiatric Associates reported a “m arginal im provem ent” in Claim ant’s depression. (Tr. at 256). On J anuary 18, 20 0 5, Dr. Triplett found that Claim ant’s pain in her left arm , shoulder, and elbow were due to m ild degenerative joint disease, but that she suffered from that condition in those areas only. (Tr. at 316). Dr. Triplett noted that Claim ant had hypertension and that he needed to rule out diabetes. (Tr. at 317). On April 6, 20 0 5, a DDS physician com pleted a Psychiatric Review Technique Form concerning Claim ant; his findings are sum m arized by the court below: Claim ant had non-severe m ental im pairm ents of borderline intellectual functioning; affective disorder, characterized by appetite disturbance with change in weight, sleep disturbance, and decreased energy; m oderate m ajor depressive disorder; and anxiety. Claim ant did not have an im pairm ent in the category of m ental retardation which is defined as “[s]ignificantly subaverage general intellectual functioning with deficits in adaptive functioning.” On a scale of none, m ild, m oderate, m arked, and extrem e, Claim ant’s m ental im pairm ents rendered her m ildly restricted in activities of daily living; m aintaining social functioning; and m aintaining concentration, persistence, or pace. There were no episodes of decom pensation of extended duration. (Tr. at 269-282). On April 11, 20 0 5, Fulvio Franyutti, M.D., com pleted a Physical RFC Assessm ent Form , listing the following: 13 Claim ant could lift and/ or carry twenty pounds occasionally and ten pounds frequently; stand and/ or walk and sit with norm al breaks for approxim ately six hours in an eight-hour work day; and push and/ or pull, including hand and/ or foot controls, an unlim ited am ount. Claim ant could occasionally clim b ram ps/ stairs, balance, and stoop and could never clim b ladders/ robes/ scaffolds, kneel, crouch, or crawl. Claim ant had no m anipulative, visual, or com m unicative lim itations. Claim ant had no lim itations with regard to wetness, hum idity, or noise, but should avoid concentrated (as opposed to moderate or all exposure) to extrem e cold, extrem e heat, vibration, fum es, odors, dusts, gases, poor ventilation, and hazards such as m achinery, heights, etc. (Tr. at 284-287). Dr. Franyutti also noted that in his judgm ent, Claim ant’s sym ptom s were attributable to m edically determ inable im pairm ents. (Tr. at 288). He found Claim ant to be credible and that her allegations were supported by the m edical findings. Id. He adjudged her capable of perform ing “light” work. Id. There were no statem ents from a treating doctor in the file from which Dr. Franyutti form ed his opinion. (Tr. at 289). On April 15, 20 0 5, Dr. Triplett noted that Claim ant’s hypertension and diabetes were controlled. (Tr. at 298). He stated that he was “very pleased” with her blood sugar level and that her “blood pressures have been great also.” Id. On August 20 , 20 0 5, Cynthia L. Clay, WV Licensed Psychologist, evaluated Claim ant. (Tr. at 292). Ms. Clay noted that Claim ant was cooperative, that her attention and concentration were intact, that her persistence was “generally good,” and that the results of the tests were considered to be valid. Id. Ms. Clay found that Claim ant was 14 able to read at a fourth grade level and spell and perform arithm etic at a third grade level. Id. On Novem ber 19, 20 0 5, Tri-State MRI reported that Claim ant had “degenerative disc disease with spinal canal, lateral recess and neural foram inal stenosis;” that her “right L4-5 neural foram en [was] very narrowed from either disc protrusion or extrusion superim posed on bulging;” and that her “spinal canal stenosis [was] m ost noted from L2 to L4.” (Tr. at 294). On April 14, 20 0 6, Claim ant reported to Tri-State Rehab Services of Westm oreland. (Tr. at 386-387). She was assessed as having “good rehab potential” and scheduled for physical therapy two-to-three tim es per week for a four-to-six week period. Id. On May 13, 20 0 6, Ms. Clay, subm itted her opinion of Claim ant’s condition. (Tr. at 336-342).7 Ms. Clay worked with Claim ant since J une 20 0 5. (Tr. at 336). Ms. Clay’s diagnosis of Claim ant was “Major Depressive Disorder, Recurrent, Mild” and “Breathing Related Sleep Disorder.” Id. On a functional im itation scale of “none, slight, m oderate, m arked, or extrem e,” Ms. Clay assessed that Claim ant had a “slight” restrictive of activities of daily living; a “m oderate” difficulty in m aintaining social functioning; and often experienced deficiencies of concentration, persistence, or pace. (Tr. at 341). 7 Claim ant asserts that this evidence was obtained “after the hearing, on May 5, 20 0 6.” (Pl.'s Br. at 10 ). A date stam p on the docum ent indicates that it was received by the SSA on May 19, 20 0 6. Claim ant assertion that the evidence was obtained “after the hearing” is illogical as the hearing took place on J une 8, 20 0 6. Therefore, the Court assum es that this evidence was received prior to the hearing. 15 b. Evid e n ce Re ce ive d Po s t H e arin g On Septem ber 30 , 20 0 6, Richard Cohen, M.D., provided his m edical opinion, based upon a review of Claim ant’s m edical evidence. (Tr. at 357-362). His findings, as sum m arized by the court, include the following: Claim ant’s m ental im pairm ents from J uly 20 0 2, when she last worked, to the present, were m ajor depression with sleeping problem s, decreased energy, decreased concentration, suicide ideation at tim es, decreased self esteem , borderline intellectual functioning, and anxiety disorder. Claim ant’s activities of daily living and social functioning were m ildly im paired; her concentration, persistence, and pace was m oderately im paired; and she had no episodes of deterioration or decom position for extended periods of tim e. Claim ant’s im pairm ents, considered in com bination, did not equal any im pairm ents listed in Appendix 1, Subpart P, Social Security Regulations No. 4. Claim ant had a “good” ability to follow work rules; relate to co-workers; deal with the public; interact with supervisor(s); function independently; understand, rem em ber, and carry out sim ple job instructions; and m aintain personal appearance. Claim ant had a “fair” ability to use judgm ent; deal with work stresses; m aintain attention/ concentration; understand, rem em ber, and carry out com plex job instructions; understand, rem em ber, and carry out detailed, but not com plex job instructions; behave in an em otionally stable m anner; relate predictably in social situations; and dem onstrate reliability. Claim ant could, at a m inim um , perform sim ple, repetitive tasks in a low-stress environm ent. Id. On J anuary 30 , 20 0 7, Claim ant was evaluated by Travis Hansbarger, M.D. (Tr. at 390 -393). Dr. Hansberger diagnosed Claim ant with chronic “LBP” with “DDD” and “CTS,” which the court interprets as lower back pain with degenerative disc disease and carpel tunnel syndrom e. (Tr. at 390 ). Dr. Hansbarger m ade the following observations: 16 In an eight-hour work day, Claim ant could sit for approxim ately four hours with hourly breaks of walking for fifteen m inutes and she could stand/ walk less than two hours at a tim e. Claim ant m ust be able to shift positions at will from sitting, standing, or walking and m ust occasionally take unscheduled breaks during an eight-hour work day. Claim ant did not require a cane or other assistive device to walk and can occasionally lift less than ten pounds, but never m ore than ten pounds. Depression and anxiety contributed to the severity of Claim ant’s sym ptom s and functional lim itations. Claim ant’s physical and em otional im pairm ents were reasonably consistent with the sym ptom s and functional lim itations listed in the report. Claim ant frequently experienced pain or other sym ptom s severe enough to interfere with attention and concentration needed to perform sim ple work tasks and was incapable of even low stress jobs due to her psychological conditions. Claim ant could not walk a city block without rest or severe pain and could stand for five m inutes before needing to sit down or walk around. Claim ant could not bend over, squat, or clim b ladders and could rarely twist or clim b stairs. Claim ant had significant lim itations with reaching, handling, or fingering and as a result, during a work day, she could not use her hands to grasp, turn, or twist objects; could not use her fingers for fine m anipulation; and could use her arm s to reach overhead only five percent of the tim e. (Tr. at 391-393). Dr. Hansbarger’s final notation was that “[w]orking in the public sector would be difficult for [Claim ant].” (Tr. at 393). III. Claim an t’s Ch alle n ge s to th e Co m m is s io n e r’s D e cis io n Claim ant asserts that the ALJ erred by (1) failing to subm it the interrogatories obtained from Dr. Cohen after the hearing to the Claim ant and offering the Claim ant the opportunity to either question Dr. Cohen by her own interrogatories or at hearing, (2) failing to address the opinion of the Claim ant’s treating psychologist, and (3) relying 17 upon a vocational expert’s testim ony without allowing the vocational expert to see all of the evidence. (Pl.'s Br. at 7-11). To the contrary, the Com m issioner argues that (1) the ALJ properly entered the post-hearing evidence into the record in accordance with the Regulations, (2) substantial evidence supports the ALJ ’s decision that Claim ant was not disabled, (3) substantial evidence supports the ALJ ’s finding that Claim ant could perform the unskilled jobs identified by the vocational expert. (Def.'s Br. at 9-15). V. D is cu s s io n a. D r. Co h e n ’s Po s t-H e arin g Re p o rt Subsequent to Claim ant’s adm inistrative hearing, Dr. Richard Cohen provided his opinion of Claim ant’s condition. (Tr. at 357-362). Claim ant’s first assertion of error argues that “the ALJ should have obtained an explicit waiver [of Claim ant’s right to request a supplem ental hearing, cross exam ine Dr. Cohen, or subm it controverting evidence] on the record either by signed statem ent or as an exhibit before entering Dr. Cohen’s opinion on the record and relying upon it in m aking his decision.” (Pl.'s Br. at 8). Claim ant specifically points to portions of I-2-7-15 and I-2-7-35 of the Social Security Adm inistration Office of Disability Adjudication and Review Hearings, Appeals, and Litigation Law Manual (“HALLEX”): If the ALJ decides at or after the hearing that additional evidence is needed for a full and fair inquiry into the m atters at issue, the ALJ will direct the HO staff to undertake the necessary developm ent and inform the claim ant of the evidence that is being developed. The ALJ will also inform the claim ant that he or she will be given an opportunity to exam ine and com m ent on, object to, or refute the 18 evidence by subm itting other evidence, requesting a supplem ental hearing, or if required for a full and true disclosure of the facts, cross-exam ining the author(s) of the evidence. A claim ant m ay waive the right to exam ine additional evidence. However, the ALJ m ust neither encourage nor discourage waiver. If a claim ant decides to waive such right, the waiver m ust be m ade either on the record at the hearing or in writing. If a claim ant has waived the right to exam ine additional evidence, the ALJ m ay enter it into the record without proffering it. However, if the ALJ believes the claim ant should exam ine it, the ALJ should proffer it notwithstanding the waiver. (citations om itted) HALLEX I-2-7-15. If an ALJ enters posthearing evidence into the record without proffer, the ALJ m ust ensure that the claim ant waived the right to exam ine the evidence and to appear at a supplem ental hearing. The waiver m ay have been m ade on-the-record at the hearing or by a signed written statem ent. HALLEX I-2-7-35. Claim ant either m isunderstands the facts of this case or the HALLEX provisions which she cites. The ALJ in this case did not enter the evidence from Dr. Cohen w ithout proffer. Thus, the ALJ was not required to obtain a waiver on the record or by a signed written statem ent. Rather, the ALJ sent a proffer letter on J anuary 22, 20 0 7 to Marie Redd, Claim ant’s non-attorney advocate, apprising her of the new evidence. (Tr. at 135136). 8 The letter com ports with the requirements of HALLEX I-2-7-30 : The proffer letter m ust: Give the claim ant a tim e lim it to object to, com m ent on or refute the evidence, subm it a written statem ent as to the facts and law that the claim ant believes apply to the case in light of the evidence subm itted, subm it written questions 8 Claim ant was represented at the adm inistrative level by Marie Redd; attorney, William Redd; and the Redd Law Firm , all of which share the sam e business address. The proffer letter was sent to that location. 19 to be sent to the author(s) of the proferred evidence or exercise his or her rights with respect to requesting a supplem ental hearing and the opportunity to cross-exam ine the author(s) of any posthearing report(s) if it is determ ined by the ALJ that such questioning is needed to inquire fully into the issues. Advise the claim ant that he/ she m ay request a subpoena to require the attendance of witnesses or the subm ission of records and the procedures for the requesting and issuance of a subpoena. Therefore, Claim ant argum ent that the ALJ did not com ply with the procedures outlines in HALLEX is without m erit.9 Claim ant also cites Goan v. Shalala, 853 F.Supp. 218, 219 (S.D.W.Va. 1994), stating the holding of the case as the following: “[A]n ALJ m ust choose either to grant a claim ant the right to cross-exam ine a consulting physician subm itting a post hearing report or decline to rely upon the physician’s report.” (Pl.'s Br. at 8). Claim ant, however, fails to appreciate the holding of that case. In Goan v. Shalala, the Claim ant sought to rem and his case because the ALJ denied him the opportunity to cross-exam ine a doctor who provided a post-hearing report. Goan, 853 F.Supp. at 219. The Court upheld the Magistrate J udge’s finding that the ALJ ’s refusal of Claim ant’s request to cross-exam ine the doctor was an abuse of discretion under the Regulations and constituted a denial of due process. Id. Goan provides no support for Claim ant’s contention. Here, the ALJ ’s letter specifically advised Claim ant that she could question “the author(s) of the enclosed report(s).” (Tr. at 135). Claim ant never responded to the letter or requested to cross-exam ine Dr. Cohen. 9 Dr. Cohen’s report (Tr. at 357-362) does not appear directly after the proffer letter (Tr. at 135-136) in the Social Security Transcript. However, the letter states that additional evidence is enclosed and the Com m issioner verifies that Dr. Cohen’s report was included in this enclosure. (Def.'s Br. at 9-10 ). 20 Lastly, Claim ant cites Goree v. Callahan, 964 F.Supp. 1533 (N.D.Okla. 1997) and a case cited therein, Allison v. Heckler, 711 F.2d 145, 147 (10 th Cir.). Claim ant states that “[i]t has been held that the claim ant is denied due process when an ALJ uses a posthearing m edical report without giving the claim ant the opportunity to cross-exam ine the physician or rebut the report.” (Pl.'s Br. at 8). Claim ant sim ilarly m isunderstands the holdings of both Goree v. Callahan and Allison v. Heckler. In Goree, the ALJ sent the claimant a letter notifying him that he received posthearing evidence from a doctor and advising the claim ant of his rights with respect to the new evidence. However, when the claim ant requested in writing a supplem ental hearing and the opportunity to cross-exam ine the doctor, the ALJ did not respond and instead issued his opinion denying benefits. Goree, 964 F.Supp. at 1536-1537. Goree, like the aforem entioned case cited by Claim ant, is not relevant to this m atter. Here, the ALJ did not deny Claim ant the right to question Dr. Cohen, to subm it interrogatories, or to have a supplem ental hearing. The ALJ sim ply advised Claim ant of her rights and Claim ant chose not to respond. Allison v. Heckler, is likewise inapposite to this case. There, the ALJ sent the adm inistrative hearing record to a doctor for review and then relied on the doctor’s conclusions in finding the Claim ant not disabled and denying benefits. The Court found that the Claim ant was denied due process because he was never given the opportunity to subpoena or cross-exam ine the doctor or offer evidence in rebuttal. Allison, 711 F.2d at 147. 21 b. Tre atin g Ps ych o lo gis t Ms . Clay Claim ant next asserts that the ALJ “com m itted clear error in not addressing the weight of the decision he gave to the opinion of the treating psychologist.” (Pl.'s Br. at 10 ). The opinion to which Claim ant refers is that of Ms. Cynthia Clay, which was expressed in her letter dated May 13, 20 0 6. (Tr. at 336-343). Claim ant does not point to any area in which the ALJ ’s RFC finding is inconsistent with the opinion of Ms. Clay. Rather, Claim ant argues that the ALJ did not specifically enum erate the weight which he accorded to Ms. Clay’s 20 0 6 letter and accom panying Psychiatric Evaluation Form . To the extent that the ALJ did not explicitly state the weight that he afforded to this evidence, the Court finds this to be a harm less error for the following reasons. Courts have applied a harm less error analysis in the context of Social Security appeals. One illustrative case provides: Moreover, “[p]rocedural perfection in administrative proceedings is not required. This court will not vacate a judgm ent unless the substantial rights of a party have been affected.” May s v. Bow en, 837 F.2d 1362, 1364 (5th Cir.1988). The procedural im proprieties alleged by Morris will therefore constitute a basis for rem and only if such im proprieties would cast into doubt the existence of substantial evidence to support the ALJ 's decision. Morris v. Bow en, 864 F.2d 333, 335 (5th Cir. 1988); Fisher v. Bow en, 869 F.2d 10 55, 10 57 (7th Cir. 1989) (“No principle of adm inistrative law or com m on sense requires us to rem and a case in quest of a perfect opinion unless there is reason to believe that the rem and m ight lead to a different result”). Our Court of Appeals, in a num ber of unpublished decisions, has taken the sam e approach. See, e.g., Bishop v. Barnhart, No. 22 0 3-1657, 20 0 3 WL 22383983, at *1 (4th Cir. Oct 20 , 20 0 3); Cam p v. Massanari, No. 0 1-1924, 20 0 1 WL 1658913, at *1 (4th Cir. Dec 27, 20 0 1); Spencer v. Chater, No. 952171, 1996 WL 3690 7, at *1 (4th Cir. J an. 31, 1996). In reconciling the consideration cited by Claim ant that the Court “cannot determ ine if findings are unsupported by substantial evidence unless the [ALJ ] explicitly indicates the weight given to all of the relevant evidence,” Gordon v. Schw eiker, 725 F.2d 231, 235 (4th Cir. 1984), the Court finds that the ALJ ’s failure to explicitly state the weight given to Ms. Clay’s 20 0 6 letter to be harm less error because it does not “cast into doubt the existence of substantial evidence to support the ALJ 's decision.” Morris, 864 F.2d at 335. The ALJ specifically m entions Ms. Clay’s letter, indicating that he considered it. (Tr. at 22-23). Further, his determ ination of Claim ant’s m ental im pairm ents and RFC are consistent with Ms. Clay’s observations. The RFC finding, in relevant part, states: [Claim ant] has a “fair” (defined as lim ited, but satisfactory) ability to use judgm ent; to deal with work stresses; to m aintain attention/ concentration; to understand, rem em ber and carry out com plex and detailed job instructions; to behave in an em otionally stable m anner; to relate predictably in social situations; and to dem onstrate reliability. (Tr. at 20 ). Correspondingly, on a functional lim itation scale of “none, slight, m oderate, m arked, or extrem e,” Ms. Clay assessed that Claim ant had a “slight” restrictive of activities of daily living; a “m oderate” difficulty in m aintaining social functioning; and often experienced deficiencies of concentration, persistence, or pace. (Tr. at 341). The entirety of the post-hearing evidence received from Ms. Clay consists of (1) Ms. Clay’s letter, which states: 23 I am writing in response to your request for records of m y work with Peggy Hood. I have been working with Ms. Hood in m y practice since J une, 20 0 5. My diagnosis of Ms. Hood is (296.31) Major Depressive Disorder, Recurrent, Mild and (780 .59) Breathing Related Sleep Disorder. Sym ptom s related to these diagnoses include: depressed m ood, loss of energy, sleep difficulty, difficulty with m otivation, hopelessness, concentration problem s and low self-esteem . She also reports having racing thoughts and irritability at tim es. Ms. Hood has been consistent in attending appointm ents and has participated well. We have addressed daily coping skills/ stress m anagem ent, grief/ loss issues and fam ily or origin issues/ loss. (Tr. at 336) and (2) a Psychiatric Evaluation Form , which consists of “check off boxes” for which Ms. Clay checked the aforem entioned disorders and sym ptom s and rated Claim ant’s degree of lim itation as discussed above. (Tr. at 341). Ms. Clay did not include any additional com m ents, treatm ent notes, or other evidence with the letter and form . Therefore, the evidence received from Ms. Clay does not conflict with the ALJ ’s findings. As such, rem and is not warranted to correct the procedural technicality that the ALJ did not specify how m uch weight he afforded to Ms. Clay’s observations. Furtherm ore, the ALJ ’s decision is supported by substantial evidence. In respect to m ental lim itations, which is what Ms. Clay’s evidence concerns, the ALJ thoroughly discussed the evidence which he considered in determ ining that Claim ant had severe im pairm ents of depression and borderline intellectual functioning. (Tr. at 17-18, Finding No. 4). In addition, the ALJ implem ented the “special technique,” outlined at 20 C.F.R. §§ 40 4.1520 a and 416.920 a, which is used in evaluating the severity of m ental im pairm ents. (Tr. at 18-19, Finding No. 5). In finding Claim ant’s m ental RFC, the ALJ 24 extensively discussed the evidence of record. (Tr. at 20 -24, Finding No. 6). Claim ant does not point to any area in the ALJ ’s decision which contravenes Ms. Clay’s evidence, but only asserts a procedural error. Thus, as stated above, this argum ent does not warrant rem and. c. H yp o th e tical Po s e d to th e Vo catio n al Exp e rt Claim ant’s final assertion of error is that “the opinion of the vocational expert in this case cannot be used as substantial evidence to support the ALJ ’s unfavorable decision sim ply because the jobs cited were not in response to the hypothetical given in the decision.” (Pl.'s Br. at 11). As discussed the RFC finding in the ALJ ’s decision, in relevant part, states: [Claim ant] has a “fair” (defined as lim ited, but satisfactory) ability to use judgm ent; to deal with work stresses; to m aintain attention/ concentration; to understand, rem em ber and carry out com plex and detailed job instructions; to behave in an em otionally stable m anner; to relate predictably in social situations; and to dem onstrate reliability. (Tr. at 20 ). Claim ant argues that the hypothetical which the ALJ posed to the vocational expert during the hearing, however, did not include these “psychological lim itations.” As such, Claim ant argues that the vocational expert’s statem ent that jobs existed which the Claim ant could perform is invalid because she did not base her opinion on a hypothetical which fairly included all of Claim ant’s im pairm ents. (Pl.'s Br. at 11). Claim ant m isunderstands the requirem ent that the opinion of a vocational expert is not helpful if it is not delivered “in response to proper hypothetical questions which fairly set out all of [a] claim ant's im pairm ents.” W alker v. Bow en, 889 F.2d 47, 50 (4th 25 Cir. 1989). A hypothetical posed to the expert need not reflect the RFC finding in the ALJ ’s decision with explicit precision in order to fairly set out a claim ant’s im pairm ents. Rather, the hypothetical m ust “adequately reflect” the RFC for which the ALJ had sufficient evidence. Fisher v. Barnhart, 181 Fed. Appx. 359, 364 (4th Cir. 20 0 6), quoting Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 20 0 5). Here, the ALJ first questioned the vocational expert whether the Claim ant could perform any of her past work, considering the following lim itations: [H]er age of 51, her one year of business school that she went through, training and work experience, exertional im pairm ents that lim it her to light work. Nonexertionally, she should never clim b ladders, ropes, or scaffolds, kneel, crouch, or crawl. She should only occasionally climb ram ps and stairs, balance, and stoop. And she should avoid extrem e cold, heat, vibration, air pollutants, and hazards. (Tr. at 440 -441). Claim ant is correct that this hypothetical does not include m ental lim itations. However, the ALJ proceeded to question the expert if she could provide “two exam ples of light and sedentary, unskilled jobs.” (Tr. at 441). As stated by the Fourth Circuit in Fisher, 181 Fed. Appx. at 364, “unskilled work” is a term of art, defined by regulation as “work which needs little or no judgm ent to do sim ple duties that can be learned on the job in a short period of tim e.” 20 C.F.R. § 40 4.1568(a). The ALJ ’s hypothetical fairly reflected Claim ant’s m ental im pairm ents without explicitly listing them . Like this case, the ALJ in Fisher found that the claim ant suffered from borderline intellectual functioning, am ong other im pairments. Fisher, 181 Fed. Appx. at 362. The borderline intellectual functioning, in com bination with an adjustm ent disorder, rendered the claim ant m ildly restricted in activities of daily living and social functioning and m oderately restricted in m aintaining concentration, 26 persistence, and pace. Id. However, the ALJ did not state these restrictions verbatim in the hypothetical posed to the vocational expert, but rather told the expert to assum e that the claim ant was capable of only “unskilled work” and that he could not “perform com plex tasks.” Id. at 364. The Court found that the hypothetical adequately represented the lim itations that the ALJ listed in the RFC assessm ent. Id.; see also How ard v. Massanari, 255 F.3d 577, 582 (8th Cir. 20 0 1) (“We find that [a hypothetical question] describing [the claim ant] as capable of doing sim ple work adequately accounts for the finding of borderline intellectual functioning”). The purpose of a hypothetical question posed to a vocational expert is to elicit a response as to whether a claim ant can work, considering his or her lim itations. Therefore, where the hypothetical encom passes the Claim ant’s m ental lim itations by virtue of questioning whether she can perform any “unskilled” jobs, the om ission of the m ental lim itations in the hypothetical is justified. Here, the ALJ acknowledges the om ission of Claim ant’s m ental im pairm ents in the hypothetical that he posed to the expert. The ALJ states that he afforded great weight to Dr. Cohen’s assessm ent, which was received after the hearing, in determ ining the m ental lim itations in the Claim ant’s RFC. (Tr. at 24). However, he further states that nevertheless, the m ental lim itations “would not change the jobs nam ed by the vocational expert at the hearing, since all of those jobs are sim ple and routine in nature.” Id. For the reasons stated above, the ALJ ’s conclusion is correct. Based on the hypothetical posed, the vocational expert identified that Claim ant could perform unskilled jobs such as bench worker, information clerk, house 27 sitter/ companion, and grader/ sorter. Because these positions are “unskilled” jobs, they were based on an assum ption of lim ited m ental ability. Therefore, the hypothetical and the jobs cited in response are consistent with the ALJ ’s findings concerning Claim ant’s m ental lim itations and the om ission did not render the vocational expert’s testim ony inaccurate. VI. Co n clu s io n After a careful consideration of the evidence of record, the Court finds that the Com m issioner’s decision IS supported by substantial evidence. Accordingly, by J udgm ent Order entered this day, the final decision of the Com m issioner is AFFIRMED and this m atter is D ISMISSED from the docket of this Court. The Clerk of this Court is directed to transm it copies of this Order to all counsel of record. EN TERED : Novem ber 3, 20 10 . 28
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