Slone v. Colvin, No. 3:2014cv28857 - Document 15 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINION affirming the final decision of the Commissioner and dismissing this matter from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 12/3/2015. (cc: counsel of record) (jsa)
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Slone v. Colvin Doc. 15 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 H AROLD W ESLEY SLON E, Plain tiff, v. Cas e N o .: 3 :14 -cv-2 8 8 57 CAROLYN W . COLVIN , Actin g Co m m is s io n e r o f th e So cial Se cu rity Ad m in is tratio n , D e fe n d an t. MEMORAN D U M OPIN ION This is an action seeking review of the decision of the Com m issioner of the Social Security Adm inistration (hereinafter the “Com m issioner”) denying Plaintiff’s application for disability 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, 13811383f. The case is presently before the Court on the parties’ m otions for judgm ent on the pleadings as articulated in their briefs. (ECF Nos. 12, 13). Both parties have consented in writing to a decision by the United States Magistrate J udge. (ECF Nos. 4, 7). The Court has fully considered the evidence and the argum ents of counsel. For the reasons that follow, the Court finds that the decision of the Com m issioner is supported by substantial evidence and should be affirm ed. I. Pro ce d u ral H is to ry Plaintiff, Harold Wesley Slone (“Claim ant”), com pleted applications for DIB and - 1Dockets.Justia.com SSI on August 22, 20 11 and Septem ber 6, 20 11, respectively, alleging a disability onset date of May 15, 20 10 , (Tr. at 147, 149), due to “anxiety; steel rod in right leg; torn bulging disc; can’t sit for long periods; left shoulder has bone in it; social anxiety; near sightedness; m ajor depression; recurrent personality disorder; avoidant personality disorder.” (Tr. at 187). The Social Security Adm inistration (“SSA”) denied the applications initially and upon reconsideration. (Tr. at 15). Claim ant filed a request for a hearing, which was held on May 1, 20 13 before the Honorable Andrew J . Chwalibog, Adm inistrative Law J udge (“ALJ ”). (Tr. at 37-56). By written decision dated May 6, 20 13, the ALJ determ ined that Claim ant was not entitled to benefits. (Tr. at 15-26). The ALJ ’s decision became the final decision of the Com m issioner on Septem ber 25, 20 14, when the Appeals Council denied Claim ant’s request for review. (Tr. at 1-7). On Novem ber 21, 20 14, Claim ant filed the present civil action seeking judicial review of the adm inistrative decision pursuant to 42 U.S.C. § 40 5(g). (ECF No. 2). The Com m issioner filed an Answer and a Transcript of the Proceedings on February 5, 20 15. (ECF Nos. 10 , 11). Thereafter, the parties filed their briefs in support of judgm ent on the pleadings. (ECF Nos. 12, 13). Accordingly, this m atter is fully briefed and ready for disposition. II. Claim an t’s Backgro u n d Claim ant was 37 years old at the tim e of his alleged onset of disability and 40 years old at the tim e of the ALJ ’s decision. (Tr. at 25, 41). He completed the eighth grade in school and com m unicates in English. (Tr. at 42, 186). Claim ant’s prior work experience includes jobs as an over-the-road truck driver and a hand packager. (Tr. at 24). -2- III. Su m m ary o f ALJ’s Fin d in gs Under 42 U.S.C. § 423(d)(5), a claim ant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 775 (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 physical or m ental im pairm ent which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 m onths.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations establish a five step sequential evaluation process for the adjudication of disability claim s. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§ 40 4.1520 (a)(4), 416.920 (a)(4). First, the ALJ determ ines whether a claim ant is currently engaged in substantial gainful em ploym ent. Id. §§ 40 4.1520 (b), 416.920 (b). Second, if the claim ant is not gainfully em ployed, then the inquiry is whether the claim ant suffers from a severe im pairm ent. Id. §§ 40 4.1520 (c), 416.920 (c). Third, if the claim ant suffers from a severe im pairm ent, the ALJ determ ines whether this im pairm ent m eets or equals any of the im pairm ents listed in Appendix 1 to Subpart P of the Adm inistrative Regulations No. 4 (the “Listing”). Id. §§ 40 4.1520 (d), 416.920 (d). If the im pairm ent does m eet or equal a listed im pairm ent, then the claim ant is found disabled and awarded benefits. However, if the im pairm ent does not m eet or equal a listed impairm ent, the adjudicator m ust determ ine the claim ant’s residual functional capacity (“RFC”), which is the m easure of the claim ant’s ability to engage in substantial gainful activity despite the lim itations of his or her im pairm ents. Id. §§ 40 4.1520 (e), 416.920 (e). In the fourth step, the ALJ ascertains whether the claim ant’s im pairm ents prevent the perform ance of -3- past relevant work. Id. §§ 40 4.1520 (f), 416.920 (f). If the im pairm ents do prevent the perform ance of past relevant work, then the claim ant has established a prim a facie case of disability and the burden shifts to the Com m issioner to prove the final step. McLain v. Schw eiker, 715 F.2d 866, 868-69 (4th Cir. 1983). Under the fifth and final inquiry, the Com m issioner m ust dem onstrate that the claim ant is able to perform other form s of substantial gainful activity, while taking into account the claim ant’s rem aining physical and m ental capacities, age, education, and prior work experiences. 20 C.F.R. §§ 40 4.1520 (g), 416.920 (g); see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). The Com m issioner m ust establish two things: (1) that the claim ant, considering his or her age, education, skills, work experience, and physical shortcom ings has the capacity to perform an alternative job, and (2) that this specific job exists in significant num bers in the national econom y. McLam ore v. W einberger, 538 F.2d 572, 574 (4th Cir. 1976). When a claim ant alleges a m ental im pairm ent, the ALJ “m ust follow a special technique” when assessing disability. 20 C.F.R. §§ 40 4.1520 a, 416.920 a. First, the ALJ evaluates the claim ant’s pertinent signs, sym ptom s, and laboratory results to determine whether the claim ant has a m edically determ inable m ental im pairm ent. Id. §§ 40 4.1520 a(b), 416.920 a(b). If such im pairm ent exists, the ALJ docum ents the findings. Second, the ALJ rates and docum ents the degree of functional lim itation resulting from the im pairm ent according to criteria specified in the Regulations. Id. §§ 40 4.1520 a(c), 416.920 a(c). Third, after rating the degree of functional lim itation from the claim ant’s im pairm ent(s), the ALJ determ ines the severity of the lim itation. Id. §§ 40 4.1520 a(d), 416.920 a(d). A rating of “none” or “m ild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decom pensation) will result in a finding that the im pairm ent is -4- not severe unless the evidence indicates that there is m ore than m inim al lim itation in the claim ant’s ability to do basic work activities. Id. §§ 40 4.1520 a(d)(1), 416.920 a(d)(1). Fourth, if the claim ant’s im pairm ent is deem ed severe, the ALJ com pares the m edical findings about the severe im pairm ent and the degree of functional lim itation against the criteria of the appropriate listed m ental disorder to determ ine if the severe im pairm ent m eets or is equal to a listed m ental disorder. Id. §§ 40 4.1520 a(d)(2), 416.920 a(d)(2). Finally, if the ALJ finds that the claim ant has a severe m ental im pairm ent that neither m eets nor equals a listed m ental disorder, then the ALJ assesses the claim ant’s residual function. 20 C.F.R. §§ 40 4.1520 a(d)(3), 416.920 a(d)(3). In this case, the ALJ determ ined as a prelim inary m atter that Claim ant m et the insured status requirem ents of the Social Security Act through Decem ber 31, 20 15. (Tr. at 17, Finding No. 1). The ALJ acknowledged that Claim ant satisfied the first inquiry because he had not engaged in substantial gainful activity since May 15, 20 10 , the alleged disability onset date. (Id., Finding No. 2). Under the second inquiry, the ALJ found that Claim ant suffered from severe im pairments of back pain secondary to degenerative disc disease, depression, anxiety, and personality disorder. (Tr. at 17-18, Finding No. 3). Claim ant also had three non-severe im pairm ents; that being, “steel rod in his right leg,” near-sightedness, and obesity. (Id.). Under the third inquiry, the ALJ concluded that Claim ant’s im pairm ents, either individually or in com bination, did not m eet or medically equal any of the listed im pairm ents. (Tr. at 18-20 , Finding No. 4). Therefore, the ALJ determ ined that Claim ant had the RFC to: [P]erform light work as defined in 20 CFR 40 4.1567(b) and 416.967(b). The claim ant can never clim b a ladder or scaffold. He can only occasionally clim b a ram p and stairs, balance, stoop, kneel, crouch, and crawl. He m ust avoid concentrated exposure to cold, vibrations, and hazards. He can learn and perform routine work-related activities, but the -5- task should be low stress with no supervisory responsibilities and no fastpaced production requirem ents. The job setting should call for no m ore than occasional and superficial social interaction and supervision should be low-key, supportive and not over-the-shoulder. (Tr. at 20 -24, Finding No. 5). At the fourth step of the analysis, the ALJ determ ined that Claim ant was unable to perform any past relevant work. (Tr. at 24, Finding No. 6). Consequently, the ALJ considered Claim ant’s past work experience, age, and education in com bination with his RFC under the fifth and final step to determ ine if he would be able to engage in substantial gainful activity. (Tr. at 25-26, Finding Nos. 7-10 ). The ALJ considered that (1) Claim ant was born in 1972 and was defined as a younger individual on the alleged disability onset date; (2) he had a lim ited education but could com m unicate in English; and (3) transferability of job skills was not m aterial to the ALJ ’s disability determ ination because the Medical-Vocational Rules supported a finding of non-disability regardless of Claim ant’s transferable job skills. (Tr. at 25, Finding Nos. 7-9). Taking into account all of these factors, and Claim ant’s RFC, and relying upon the opinion testim ony of a vocational expert, the ALJ determ ined that Claim ant could perform jobs that existed in significant num bers in the national econom y. (Tr. at 25-26, Finding No. 10 ). At the light level, he could be a house sitter, order clerk, or assem bler; and at the sedentary level, Claim ant could work as a bench worker, final assem bler, and lam inator. (Tr. at 26). Therefore, the ALJ concluded that Claim ant was not disabled as defined in the Social Security Act from May 15, 20 10 through the date of the decision. (Tr. at 26, Finding No. 11). IV. Claim an t’s Ch alle n ge to th e Co m m is s io n e r’s D e cis io n Claim ant argues that the Com m issioner’s decision is not supported by substantial evidence, because the ALJ failed to give proper weight to the opinion of Claim ant’s -6- treating psychiatrist, Dr. Mohit Bhardwaj, who stated that Claim ant had extreme lim itations in his ability to interact with others and to respond to changes in the work setting; had m arked lim itations in his ability to understand, rem em ber, and carry-out com plex instructions and m ake com plex business decisions; and would likely m iss five or m ore work days each m onth. (ECF No. 12 at 4). Claim ant also contends that the ALJ rejected Dr. Bhardwaj’s opinion despite supporting evidence and, instead, gave great weight to the opinion of Dr. J im Capage, a non-exam ining agency consultant who issued his opinion without the benefit of m any of Claim ant’s later-acquired treatm ent records. (Id. at 5-6). The Com m issioner responds by asserting that the ALJ properly rejected Dr. Bhardwaj’s “extrem e” lim itations as they were not substantiated by his counseling and m edication m anagem ent notes, which reflected only conservative therapy. (ECF No. 13 at 9-10 ). Furtherm ore, the Com m issioner argues that Dr. Capage’s opinions were not only supported by the evidence available at the tim e, but were affirm ed by a second agency consultant who had access to Claim ant’s treatm ent records and noted that Claim ant’s sym ptom s had actually im proved. (Id. at 10 ). According to the Com m issioner, the ALJ wholly accounted for Claim ant’s m ental lim itations in the RFC finding, and despite the lim itations, a vocational expert found available work that Claim ant was capable of perform ing. (Id. at 12). Therefore, the decision of non-disability was supported by substantial evidence. V. Re le van t Me d ical Re co rd s The Court has reviewed the transcript of proceedings in its entirety including the m edical records in evidence. The Court has confined its sum m ary of Claim ant’s treatm ent and evaluations to those entries m ost relevant to the issues in dispute. -7- A. Tr e a t m e n t R e co r d s -Pr e s t e r a Ce n t e r fo r M e n t a l H e a lt h On August 2, 20 11, Claim ant presented to Prestera Center for Mental Health (“Prestera”), having been referred by his attorney for sym ptom s of depression, insom nia, anxiety, and racing thoughts. (Tr. at 269, 297). Claim ant was evaluated by Nikki Clatos, B.A. Claim ant advised Ms. Clatos that he had recently signed up for SSI and DIB, and he had not worked for over a year. Claim ant reported that he quit his last job as an over-the-road trucker after receiving a DUI charge when driving his personal autom obile. He indicated that he had worked at num erous jobs during the prior eight years, but had experienced difficulty keeping a job. Claim ant com plained that after a while at a job, he would begin to believe people were talking about him , or he would think he was not doing a good job, so he would quit. (Id.). Claim ant listed his current sym ptom s as depression with withdrawal, irritability, apathy, low energy, loss of interest in previous activity, anxiety with excessive worry and agitation, insom nia, guilt feelings, and low self-esteem . (Tr. at 269). Claim ant reported that he and his wife of twenty-two years were having m arital problem s related to his grouchiness. He had no friends, because he experienced difficulty interacting with others. Claim ant described feeling irritable when fam ily and friends cam e to his house. He rem arked that his irritability had worsened since he quit his job. (Tr. at 269-70 ). With respect to his history of m ental health treatm ent, Claim ant stated that he took DUI classes for six weeks after being charged with that crim e. (Tr. at 297). However, he did not feel that counseling was helpful. Claim ant had no prim ary care physician, but reported having m edical concerns including chronic pain, headaches, tobacco abuse, shortness of breath, and sleep disturbance. (Tr. at 270 , 298). He had never taken m edication to treat his depression. (Tr. at 270 ). As far as social history, -8- Claim ant stated that he lived with his wife in Fort Gay, and they had adopted one child together, who was thirty years old and lived about five m iles away. (Tr. at 298). Claim ant’s son and his five children visited frequently. Claim ant indicated that he and his wife had helped raise their grandchildren. (Tr. at 299). Claim ant’s m other was deceased, but his father lived in the area, and Claim ant saw him about once every m onth. Claim ant also reported that he attended church services with his wife. Ms. Clatos perform ed a m ental status exam ination of Claim ant. (Tr. at 270 -72). Claim ant appeared withdrawn, but had norm al speech and thought content. He was oriented in all four spheres. Claim ant’s m em ory was norm al, but his affect was blunted,and he had deficient coping skills. (Tr. at 271). Claim ant’s eye contact was appropriate; his m otor activity was norm al; and he had no suicidal or hom icidal thoughts. Ms. Clatos assessed Claim ant with Major Depressive Disorder, recurrent, m oderate, and Anxiety Disorder, not otherwise specified (“NOS”). (Tr. at 272, 30 1). She felt that Claim ant had sym ptom s of depression, anxiety, and insom nia coupled with low self-esteem and feeling of guilt. (Tr. at 30 0 -30 1). Ms. Clatos believed that Claim ant would benefit from therapy and a psychiatric evaluation to determ ine m edication m anagem ent. (Tr. at 268, 30 0 ). She felt that Claim ant had a good prognosis and assigned him a Global Assessm ent of Functioning Score of 60 .1 (Tr. at 30 0 -0 1). On the 1 The Global Assessm ent of Functioning (“GAF”) Scale is a 10 0 -point scale that rates “psychological, social, and occupational functioning on a hypothetical continuum of m ental health-illness,” but “do[es] not include im pairm ent in functioning due to physical (or environm ental) lim itations.” Diagnostic Statistical Manual of Mental Disorders, Am eric. Psych. Assoc, 32 (4th Ed. 20 0 2) (“DSM-IV”). On the GAF scale, a higher score correlates with a less severe im pairm ent. In the past, this tool was regularly used by m ental health professionals; however, in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, DSM-5, the GAF scale was abandoned in part due to its “conceptual lack of clarity” and its “questionable psychom etrics in routine practice.” DSM-5 at p. 16. GAF scores between 51 and 60 indicate “Moderate sym ptom s (e.g., flat affect and circum stantial speech, occasional panic attacks) OR m oderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” DSM-IV at 32. -9- sam e date, Ms. Clatos com pleted an inform ational database on Claim ant. (Tr. at 27986). She noted that Claim ant had not received intensive psychiatric treatm ent in the past and reiterated that he needed to be evaluated for m edication m anagem ent by Dr. Mohit Bhardwaj and receive counseling from Linda Goad, M.A. (Tr. at 281-82, 286). Claim ant saw Dr. Mohit Bhardwaj on August 8, 20 11 for a psychiatric evaluation. (Tr. at 275-78, 30 2-0 5). Claim ant reported feeling anxious, indicating that he had felt anxious m ost of his life, but his sym ptom s had increased recently after he was falsely accused of child neglect. (Tr. at 275, 30 2). Claim ant described feeling worried all of the tim e. He com plained of decreased sleep, decreased self-esteem , low energy level, and a lack of interest in prior activities. Claim ant adm itted to experiencing difficulties with social interaction, which he believed had caused him to lose jobs. However, he denied a history of psychiatric treatm ent and had never attempted suicide. (Id.). Dr. Bhardwaj perform ed a m ental status exam ination of Claim ant. He noted that Claim ant was alert, cooperative, and calm , but his eye contact was avoidant. (Tr. at 275-76, 30 2-0 3). Claim ant’s affect was constricted, but his thought content and processes were norm al. Dr. Bhardwaj diagnosed Claim ant with Major Depressive Disorder, recurrent, m oderate, and Avoidant Personality Disorder. (Tr. at 277, 30 4). His GAF score was 55. (Tr. at 277, 30 4). Dr. Bhardwaj felt that Claim ant’s prognosis was guarded due to his personality disorder; although, he believed that Claim ant m ight do substantially better because he did not have any substance abuse issues. (Tr. at 276, 30 3). Dr. Bhardwaj prescribed Celexa and Xanax. He also suggested that Claim ant use Benadryl to help him sleep. Lastly Dr. Bhardwaj arranged for Claim ant to begin psychotherapy. (Id.). Dr. Bhardwaj saw Claim ant again on August 15, 20 11 for m edication m anagem ent. (Tr. at 287-90 , 30 6-0 9). Claim ant’s sym ptom s had not changed; however, - 10 - he was not taking his m edication as prescribed. (Tr. at 287, 30 6). Claim ant’s m ental status exam ination was essentially norm al, except his affect was blunted, his coping skills were deficient, and sleep was inadequate. (Tr. at 287-88, 30 6-0 7). Claim ant’s diagnoses and GAF score rem ained the sam e. (Tr. at 289, 30 8). Dr. Bhardwaj increased Claim ant’s Xanax, prescribed trazadone for sleep, and told him to continue with Celexa. (Id.). After his evaluation by Dr. Bhardwaj, Claim ant m et with Linda Goad, M.A., for an hour of psychotherapy. (Tr. at 273). The prim ary purpose of the m eeting was to assess Claim ant’s individual counseling needs and identify adaptive coping skills to im prove his m ood and increase his activities. Claim ant presented with dysthym ic m ood and congruent affect. He related having a long history of alcohol abuse, but claim ed that he had not abused alcohol in four years. Claim ant stated that he had difficulty controlling his m oods and felt his depression had increased since he stopped working. Ms. Goad felt Claim ant was responsive to therapy and planned to continue with individual counseling. (Id.). Claim ant returned for counseling with Ms. Goad on August 26, 20 11. (Tr. at 274). Claim ant continued to have depression and also com plained of social anxiety. He stated that he isolated himself and did not want to engage in activities with others. He com plained that his son and his son’s five children would com e to Claim ant’s house and would “never leave.” (Id.). Claim ant was hesitant to ask his son to go, fearing that he would appear m ean. Ms. Goad discussed the need to express his feelings and establish boundaries. On August 29, 20 11, Claim ant returned to Prestera to see Dr. Bhardwaj. (Tr. at 291-94). Claim ant reported having better m ood and sleep, but still had a low energy - 11 - level. Dr. Bhardwaj noted that Claim ant was still not taking his m edications as prescribed; he was using m ore Xanax than instructed, because “it was wearing off fast.” (Tr. at 291). Claim ant’s m ental status exam ination was essentially norm al, except his affect was a “little constricted.” (Id.). His diagnoses rem ained the sam e, and his GAF score was 50 .2 (Tr. at 310 ). Dr. Bhardwaj prepared a disability form for Claim ant, increased his dosages of Xanax and Celexa, and instructed him to m aintain a healthy lifestyle by eating healthy foods and getting m oderate exercise. (Id.). Claim ant was supposed to return for psychotherapy on Septem ber 2, 20 11 and Novem ber 14, 20 11, but he failed to show. (Tr. at 296, 357). On Novem ber 29, 20 11, Claim ant returned to Prestera for a m edication m anagem ent session with Dr. Bhardwaj. (Tr. at 352-55). Claim ant’s m ental status exam ination was norm al, except for his coping skills, which were still described as “deficient.” (Tr. at 352-54). His diagnoses rem ained the sam e, but his GAF score had returned to 55. (Tr. at 354-55). Dr. Bhardwaj recom m ended decreasing Claim ant’s Xanax by .5 m g and increasing his Celexa. Claim ant was instructed to continue with psychotherapy. (Tr. at 352). Claim ant had an individual counseling session with Ms. Goad on December 9, 20 11. (Tr. at 351). Claim ant’s m ood was noted to be im proved and congruent with his affect. He com plained of social anxiety, but indicated that Xanax reduced his sym ptom s. He expressed concern over Dr. Bhardwaj’s decision to reduce his dosage of Xanax. Claim ant discussed with Ms. Goad his values of being a good grandfather and indicated that he played with his grandchildren and hung Christm as lights. (Id.). However, 2 A GAF of 41-50 indicates serious symptom s (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious im pairm ent in social, occupational, or school functioning (e.g. no friends, unable to keep a job). On the GAF scale, a higher score indicates a less severe impairm ent. DSM-IV at 32. - 12 - Claim ant did not appear for his next therapy session scheduled on Decem ber 30 , 20 11. (Tr. at 358). On J anuary 10 , 20 12, Claim ant saw Dr. Bhardwaj for m edication m anagem ent. (Tr. at 395-98). Claim ant reported that the increased dosage of Celexa was helping to im prove his m ood, sleep, and concentration, and increase his energy. (Tr. at 395). Claim ant’s m ental status exam ination was norm al, with his coping skills described as “im proving.” (Tr. at 396). Claim ant’s diagnoses were unchanged, but his GAF score had increased to 60 , a score on the borderline between m oderate and m ild sym ptom s. (Tr. at 397-98). At a follow-up visit on February 27, 20 12, Claim ant continued to express im provem ent. (Tr. at 399). His m ental status exam ination was norm al, and his diagnoses and GAF score were unchanged. (Tr. at 40 0 -0 2). At his m edication m anagem ent m eeting with Dr. Bhardwaj on April 9, 20 12, Claim ant reported that he was still doing fine on Xanax, Celexa, and trazodone. (Tr. at 40 3). He was encouraged to m aintain a healthy lifestyle and get into psychotherapy. (Id.). Claim ant’s m ental status exam ination was norm al, except his affect was noted to be restricted. (Tr. at 40 3-0 5).His diagnoses rem ained the sam e, and his GAF score was still 60 . (Tr. at 40 5-0 6). Claim ant appeared for psychotherapy on April 16, 20 12. (Tr. at 40 7). Ms. Goad observed that Claim ant was depressed, with a constricted affect, irritability, and agitation. He stated that people aggravated him , and he wanted to isolate him self. He felt his grandchildren were present all of the tim e, which m ade him anxious and irritable. Claim ant was growing a garden, and Ms. Goad suggested that he have his grandchildren help him with the garden. (Id.). On J une 18, 20 12, Claim ant returned for a m edication m anagem ent session with - 13 - Dr. Bhardwaj. (Tr. at 40 8-11). He reported som e anxiety related to a diagnosis received by his wife that required surgery. However, he stated that he had gone cam ping over the weekend and enjoyed it. (Tr. at 40 8). Claim ant’s m ental status exam ination was norm al, except for a restricted affect. (Tr. at 40 8-0 9). Claim ant’s diagnoses rem ained the sam e, and his GAF score was 60 . (Tr. at 410 ). Dr. Bhardwaj decided to continue Claim ant on his current m edications and instructed him to m aintain a healthy lifestyle. (Tr. at 410 11). On J uly 16, 20 12, Dr. Bhardwaj noted that Claim ant was doing fine, although his wife’s m edical problem s were causing him stress. (Tr. at 412). Claim ant also m entioned that he was struggling with finances as he waited for a ruling on his disability application. Claim ant’s m ental status exam ination was within norm al lim its; his diagnoses were unchanged; and his GAF score was 60 . (Tr. at 413-14). Dr. Bhardwaj added m elatonin to Claim ant’s m edication regim en and recom mended that he continue with therapy. (Tr. at 414). Claim ant’s condition had not changed at his next m edication m anagem ent session on Septem ber 10 , 20 12, and Dr. Bhardwaj’s diagnoses and instructions rem ained the sam e. (Tr. at 415-17). He docum ented that Claim ant’s attorney wanted a m ental status evaluation from Prestera. At his m edication m anagem ent session on October 8, 20 12, Claim ant continued to do well and was sleeping better. (Tr. at 418). He was still struggling financially, but his m ental status exam ination was within norm al lim its except for a constricted affect. (Tr. at 418-19). Dr. Bhardwaj noted that Claim ant was not attending counseling sessions, stating that he did not want to go as he was not “com fortable.” (Tr. at 420 ). His m edications, diagnoses, and GAF score were unchanged. (Tr. at 419-20 ). There were also few changes at Claim ant’s next four visits on Novem ber 12, 20 12, Decem ber 10 , - 14 - 20 12, J anuary 7, 20 13, and March 18, 20 13. (Tr. at 425-34, 437-41). In Novem ber 20 12, Dr. Bhardwaj added Rem eron to Claim ant’s m edications to boost the effect of his antidepressant, and he increased the dosage in J anuary 20 13. (Tr. at 427, 430 , 433). In March 20 13, Dr. Bhardwaj recom m ended that Claim ant see a prim ary care physician, because he had been throwing up twice per week for two m onths. (Tr. at 437). Dr. Bhardwaj explained to Claim ant that his electrolytes could becom e im balanced from vom iting. B. R FC Ev a lu a t io n s a n d Op in io n s On Septem ber 23, 20 11, Claim ant was exam ined by David L. Winkle, M.D., at the request of the SSA. (Tr. at 313-16). Although Dr. Winkle prim arily assessed Claim ant’s physical lim itations, he noted that Claim ant alleged anxiety and depression. Claim ant reported seeing a counselor at Prestera on a weekly basis and taking psychotropic m edications. (Tr. at 313). He described having panic attacks four or five tim es per day and having difficulty being around people. Dr. Winkle documented that Claim ant’s m ental status was norm al, with appropriate m ood and affect. (Tr. at 315). However, based upon the history provided by Claim ant, Dr. Winkle suggested that Claim ant work in a fairly quiet environm ent. (Tr. at 315-16). On October 6, 20 11, Dr. J im Capage com pleted a Psychiatric Review Technique pertaining to Claim ant. (Tr. at 319-32). Dr. Capage opined that Claim ant had an affective disorder, an anxiety-related disorder, and a personality disorder, although none of them precisely satisfied the diagnostic criteria for the disorders. (Tr. at 319, 322, 324, 326). Under paragraph B criteria, Dr. Capage found that Claim ant was m ildly lim ited in activities of daily living, and m oderately lim ited in social functioning and m aintaining persistence, pace, and concentration. (Tr. at 329). Claim ant had no - 15 - episodes of decom pensation of extended duration. Dr. Capage also found no evidence of paragraph C criteria. (Tr. at 330 ). Dr. Capage com pleted a Mental Residual Functional Capacity Assessm ent from , as well. (Tr. at 333-36). He determ ined that Claim ant was not significantly lim ited in m ost work-related tasks, but had m oderate lim itations in seven activities, including: the ability to carry out detailed instructions; the ability to m aintain attention and concentration for extended periods; the ability to perform activities within a schedule, m aintain regular attendance, and be punctual; the ability to work in coordination or proxim ity to others without being distracted; the ability to com plete a norm al work day and work week without interruptions from psychologically-based sym ptom s and to perform at a consistent pace without an unreasonable num ber of breaks; the ability to accept instructions and respond appropriately to criticism ; and the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extrem es. (Tr. at 333-34). Dr. Capage sum m arized his functional assessm ent by stating that Claim ant could learn and perform routine work-related activities, but should have low stress tasks with no supervisory responsibilities and no fast-paced production requirem ents. His job setting should require no m ore than occasional and superficial social interaction, and his supervisors needed to be low-key, supportive, and not overthe-shoulder. (Tr. at 335). Dr. Capage’s assessm ent was affirm ed by J eff Boggess, Ph.D., on February 22, 20 12. (Tr. at 368-81). On August 29, 20 11, Dr. Bhardwaj com pleted a Mental Residual Functional Capacity Evaluation at Claim ant’s request. (Tr. at 391-94). He found Claim ant to be m oderately lim ited in his ability to: carry out detailed instructions; m aintain attention and concentration for extended periods; com plete a norm al work day and work week - 16 - without interruptions from psychologically-based sym ptom s and to perform at a consistent pace without an unreasonable num ber of breaks; m aintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work place; be aware of norm al hazards and take appropriate precautions; and set realistic goals or m ake plans independently of others. (Tr. at 391-92). He also opined that Claim ant was m arkedly lim ited in his ability to: work in coordination or proxim ity to others without being distracted; interact appropriately with the public; ask sim ple questions; accept instructions and respond appropriately to criticism ; get along with co-workers or peers without distracting them or exhibiting behavioral extrem es; and to travel to unfam iliar places or use public transportation. (Id.). Dr. Bhardwaj concluded that Claim ant’s avoidant personality disorder markedly lim ited his social interactions, and his functioning in other areas varied with the extent of his depression. (Tr. at 393). Dr. Bhardwaj com pleted a second m ental RFC assessm ent on October 8, 20 12. (Tr. at 421-24). He stated that Claim ant had “very severe” m ental im pairm ents and sym ptom s with a guarded prognosis, although his GAF score was 60 . (Tr. at 421). Dr. Bhardwaj opined that Claim ant was m oderately im paired in his ability to m ake sim ple work-related decisions; m arkedly im paired in his ability to understand, rem em ber, and carry-out com plex instructions or m ake com plex work-related decisions; and was extrem ely im paired in his ability to interact with others. (Tr. at 422). Claim ant had a variety of m arked sym ptom s including loss of energy, blunted affect, anxiety, m ood disturbance, difficulty thinking and concentrating, and apprehension. He was m oderately isolated; had deeply ingrained, m aladaptive patterns of behavior; was easily distracted; had severe panic attacks; and had m arkedly disturbed sleep. (Tr. at 423). - 17 - Despite Claim ant having all of these signs and sym ptom s, Dr. Bhardwaj opined that Claim ant was capable of m anaging benefits in his own best interests. (Tr. at 424). On May 10 , 20 13, Dr. Bhardwaj answered specific questions posed by Claim ant’s counsel. (Tr. at 442). Dr. Bhardwaj opined that Claim ant was not capable of full-tim e em ploym ent, because he suffered from significant depression, low energy, and significant social anxiety. Dr. Bhardwaj attem pted to explain how his RFC assessm ents, which contained som e areas of marked and extrem e lim itations, was consistent with the consistent GAF scores of 60 , by indicating that Claim ant’s sym ptom s fluctuated daily and ranged from m oderate to serious. (Id.). VI. Sco p e o f Re vie w The issue before this Court is whether the final decision of the Com m issioner denying Claim ant’s application for benefits is supported by substantial evidence. The Fourth Circuit has defined substantial evidence as: 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, 483 F.2d at 776 (quoting Law s v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966)). Additionally, the adm inistrative law judge, 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. Instead, the Court’s duty is lim ited in scope; it m ust adhere to its “traditional function” and “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). Thus, the ultim ate - 18 - question for the Court is not whether the Claim ant is disabled, but whether the decision of the Com m issioner that the Claim ant is not disabled is well-grounded in the evidence, 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). VII. An alys is As previously stated, Claim ant’s sole challenge to the Com m issioner’s disability determ ination involves the weight given by the ALJ to the opinions of Dr. Bhardwaj. When evaluating a claim ant’s application for disability benefits, the ALJ “will always consider the m edical opinions in [the] case record together with the rest of the relevant evidence [he] receives.” 20 C.F.R. §§ 40 4.1527(b), 416.927(b). Medical opinions are defined as “statem ents from physicians and psychologists or other acceptable m edical sources that reflect judgm ents about the nature and severity of [a claim ant’s] im pairm ent(s), including [his] sym ptom s, diagnosis and prognosis, what [he] can still do despite [his] im pairm ent(s), and [his] physical or m ental restrictions.” Id. §§ 40 4.1527(a)(2), 416.927(a)(2). Title 20 C.F.R. §§ 40 4.1527(c), 416.927(c) outline how the opinions of accepted m edical sources will be weighed in determ ining whether a claim ant qualifies for disability benefits. In general, an ALJ should give m ore weight to the opinion of an exam ining m edical source than to the opinion of a non-exam ining source. Id. '§ 40 4.1527(c)(1), 416.927(c)(1). Even greater weight should be allocated to the opinion of a treating physician, because that physician is usually m ost able to provide Aa detailed, longitudinal picture@ of a claimant=s alleged disability. Id. §§ 40 4.1527(c)(2), 416.927(c)(2). Indeed, a treating physician’s opinion should be given co n t r o llin g weight when the opinion is supported by clinical and laboratory diagnostic - 19 - techniques and is not inconsistent with other substantial evidence. Id. If the ALJ determ ines that a treating physician=s opinion is not entitled to controlling weight, the ALJ m ust then analyze and weigh all the m edical opinions of record, taking into account certain factors listed in 20 C.F.R. § 40 4.1527(c)(2)-(6) and 20 C.F.R. § 416.927(c)(2)-(6), and m ust explain the reasons for the weight given to the opinions.3 “Adjudicators m ust rem em ber that a finding that a treating source m edical opinion is not well-supported by m edically acceptable clinical and laboratory diagnostic techniques or is inconsistent with other substantial evidence in the case record m eans only that the opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected ... In m any cases, a treating source’s opinion will be entitled to the greatest weight and should be adopted, even if it does not m eet the test for controlling weight.” Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *4 (S.S.A. 1996). Nevertheless, a treating physician’s opinion m ay be rejected in whole or in part when there is persuasive contrary evidence in the record. Coffm an v. Bow en, 829 F.2d 514, 517 (4th Cir. 1987). Ultim ately, it is the responsibility of the ALJ , not the court, to evaluate the case, m ake findings of fact, weigh opinions, and resolve conflicts of evidence. Hay s, 90 7 F.2d at 1456. Medical source statem ents on issues reserved to the Com m issioner are treated differently than other m edical source opinions. SSR 96-5p, 1996 WL 374183 (S.S.A. 1996). In both the regulations and SSR 96-5p, the SSA explains that “som e issues are not m edical issues regarding the nature and severity of an individual's im pairm ent(s) but are adm inistrative findings that are dispositive of a case; i.e., that would direct the determ ination or decision of disability;” including the following: 3 The factors include: (1) length of the treatment relationship and frequency of evaluation, (2) nature and extent of the treatment relationship, (3) supportability, (4) consistency, (5) specialization, and (6) other factors bearing on the weight of the opinion. - 20 - 1. Whether an individual's im pairm ent(s) m eets or is equivalent in severity to the requirem ents of any im pairm ent(s) in the listings; 2. What an individual's RFC is; 3. Whether an individual's RFC prevents him or her from doing past relevant work; 4. How the vocational factors of age, education, and work experience apply; and 5. Whether an individual is “disabled” under the Act. Id. at *2. “The regulations provide that the final responsibility for deciding issues such as these is reserved to the Com m issioner.” Id. Consequently, a m edical source statem ent on an issue reserved to the Com m issioner is never entitled to controlling weight or special significance, because “giving controlling weight to such opinions would, in effect, confer upon the [m edical] source the authority to m ake the determ ination or decision about whether an individual is under a disability, and thus would be an abdication of the Com m issioner’s statutory responsibility to determ ine when an individual is disabled.” Id. at *2. Still, these opinions m ust always be carefully considered, “m ust never be ignored,” and should be assessed for their supportability and consistency with the record as a whole. Id. at *3. If conflicting m edical opinions are present in the record, the ALJ m ust resolve the conflicts by weighing the m edical source statem ents and providing an appropriate rationale for accepting, discounting, or rejecting the opinions. See Diaz v. Chater, 55 F.3d 30 0 , 30 6 (7th Cir. 1995). A m inim al level of articulation of the ALJ 's assessm ent of the evidence is “essential for m eaningful appellate review;” otherwise, “‘the reviewing court cannot tell if significant probative evidence was not credited or sim ply ignored.’” Zblew ski v. Schw eiker, 732 F.2d 75, 79 (7th Cir. 1984) (citing Cotter v. Harris, 642 F.2d. - 21 - 70 0 , 70 5 (3rd Cir. 1981)). Although 20 C.F.R. §§ 40 4.1527(c),416.927(c) provide that in the absence of a controlling opinion by a treating physician, all of the m edical opinions m ust be evaluated and weighed based upon the various factors, the regulations do not explicitly require the ALJ to regurgitate in the written decision every facet of the analysis. Instead, the regulations m andate only that the ALJ give “good reasons” in the decision for the weight ultim ately allocated to medical source opinions. Id. §§ 40 4.1527(c)(2), 416.927(c)(2). Here, the ALJ com plied with the applicable regulations by considering all of the m edical source statem ents—including the RFC assessm ents prepared by Dr. Bhardwaj— in conjunction with the other evidence. (Tr. at 20 -24). Starting first with anecdotal records and Claim ant’s testim ony, the ALJ observed that, despite com plaining of num erous psychological sym ptom s, Claim ant did not seek any psychiatric care until August 20 11, when his disability attorney referred him to Prestera. (Tr. at 22). At that tim e, he reported his sym ptom s as being “m ild to m oderate.” He adm itted that he had voluntarily quit his job and was “not looking” for em ploym ent. (Id.). Although Claim ant stated that his problem being around other people had been long-standing, he denied any history of m ental health counseling or psychotropic m edication. Earlier in the decision, the ALJ noted that Claim ant had no difficulties with personal care, watched a great deal of television, started a garden, played video gam es, and helped his son raise five children. Although he described him self as a “loner,” Claim ant saw his son and grandchildren frequently, went to church occasionally, and had no problem with authority figures. Claim ant could concentrate long enough to watch a m ovie through to its end, and he conceded that he had no significant impairm ent in following written and spoken instructions. (Tr. at 19). - 22 - Moving next to the m edical evidence, the ALJ thoroughly reviewed the records pertaining to Claim ant’s care at Prestera. The ALJ discussed Claim ant’s m ental status exam inations, which revealed that Claim ant had norm al thought content, full orientation to all spheres, and a norm al m em ory. (Tr. at 23). After several weeks on m edication, Claim ant reported im provem ent in his m ood and sleep, fair appetite, and im proving concentration. Claim ant was observed to be well-oriented, friendly, and cooperative on m ental status exam ination. He m ade good eye contact, and his affect was stable and appropriate. By Novem ber 20 11, Claim ant reported increased energy, fair appetite, and im proving concentration. He indicated that the m edications were helpful, and he had no side effects from taking them . The ALJ em phasized that Claim ant continued to report im provem ent with m edication and had norm al m ental status exam inations. (Id.). After considering the anecdotal evidence, Claim ant’s testim ony, and the m edical records, the ALJ addressed the opinions offered by Dr. Bhardwaj. (Tr. at 24). The ALJ reviewed all of the m arked and extrem e functional lim itations provided by Dr. Bhardwaj, but discounted them as being inconsistent with his treatm ent records and with the counseling notes. The ALJ gave great weight to the agency consultant’s RFC assessm ent, finding it m ore consistent with the evidence as a whole. Clearly, the ALJ com plied with Social Security regulations and rulings in the m anner in which he assessed the opinions. See Bishop v. Com m issioner of Social Security , 583 F.App’x 65, 67 (4th Cir. 20 14) (ALJ ’s findings that a treating physician’s opinion was neither consistent with the record, nor supported by the m edical evidence, were appropriate reasons to discount the opinion). The ALJ expressly weighed the relevant opinions and briefly explained the reason for the weight given to the opinions. The ALJ considered all - 23 - of the evidence in m aking his determ inations, including objective findings; testim ony; Claim ant’s reported activities; counseling notes; and the side effects of Claim ant’s m edications. Contrary to Claim ant’s contention, the ALJ plainly understood that Dr. Bhardwaj was Claim ant’s treating psychiatrist. Not only did the ALJ thoroughly review and reference Dr. Bhardwaj’s treatm ent notes, but the specific reason the ALJ gave for discounting Dr. Bhardwaj’s RFC assessm ents was that the opinions expressed in the assessm ents were inconsistent with Dr. Bhardwaj’s own treatm ent notes. (Tr. at 24). Moreover, Claim ant’s contention that the ALJ erred by accepting Dr. Capage’s opinion, which predated m uch of Claim ant’s treatm ent at Prestera, is unpersuasive. The weight of an agency consultant’s opinion does not rest solely upon the date that the opinion was issued. See Starcher v. Colvin, No. 1:12-0 1444, 20 13 WL 550 4494, at *7 (S.D.W.Va. Oct. 2, 20 13). In Starcher, the Court explained that “because state agency review precedes ALJ review, there is always som e tim e lapse between the consultant's report and the ALJ hearing and decision. The Social Security regulations im pose no lim it on how m uch tim e m ay pass between a report and the ALJ 's decision in reliance on it. Only w here ‘additional m edical evidence is received that in the opinion of the [ALJ] ... m ay change the State agency m edical ... consultant's finding ... is an update to the report required.” Id. (quoting Chandler v. Com m ’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 20 11)) (em phasis added) (ellipses and brackets in original). Consequently, when reviewing a final decision that is based prim arily upon an early-issued m edical source statem ent, the court m ust exam ine the record to determ ine if after-acquired m edical evidence m ight reasonably alter the m edical source’s findings, and thus require an updated evaluation. In this case, although Dr. Capage rendered his opinion only a few m onths after Claim ant initiated treatm ent with Prestera, his opinion was confirm ed in - 24 - February 20 12 by a second agency consultant. More im portantly, Claim ant’s condition did not deteriorate during the tim e fram e after Dr. Capage conducted his review. To the contrary, as the Com m issioner points out, Claim ant continued to im prove. Having fully assessed the ALJ ’s discussion, and com paring it to the record, the undersigned agrees that substantial evidence supports a finding that Claim ant is not disabled under the Social Security Act. The lim itations noted in Dr. Bhardwaj’s RFC assessm ents are sim ply too extrem e when com pared to the findings in his treatm ent records. Dr. Bhardwaj regularly gave Claim ant a GAF score of 60 . The score was intended to reflect how Dr. Bhardwaj viewed the severity of Claim ant’s sym ptom s at each appointm ent. Given that a score of 60 falls on the borderline between m oderate and m ild sym ptom s, there is no m edical explanation for the severe lim itations included by Dr. Bhardwaj in the RFC assessm ents. It was only when prodded by Claim ant’s disability counsel that Dr. Bhardwaj rated Claim ant’s sym ptom s as m oderate to “serious.” Moreover, Dr. Bhardwaj’s notes docum ent consistent reports by Claim ant that his condition was im proved with m edications. Furtherm ore, the m ajority of the findings on Claim ant’s m ental status exam inations were within norm al lim its. Also inconsistent with the severe lim itations noted in Dr. Bhardwaj’s assessm ents was Claim ant’s decision to voluntarily term inate counseling sessions. Claim ant explained the decision by stating that he was not “com fortable” with therapy. If Claim ant had been as em otionally com prom ised as Dr. Bhardwaj described in his RFC assessm ents, it seem s only logical that he would have insisted that Claim ant continue with psychotherapy. In sum , the docum entation in Dr. Bhardwaj’s records and the counseling notes do not support a finding that Claim ant is any m ore than m oderately lim ited in som e m ental work-related functions. The ALJ accepted the presence of m oderate deficits and accounted for them - 25 - by incorporating all of the RFC lim itations recom m ended by Dr. Capage and affirm ed by Dr. Boggess. Accordingly, the ALJ did not err in the weight he gave to Dr. Bhardwaj’s RFC findings. VIII. 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. Therefore, 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 counsel of record. EN TERED : December 3, 20 15 - 26 -
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