McClure v. Berryhill, No. 3:2016cv06707 - Document 13 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION denying Plaintiff's 11 Brief in Support of Judgment on the Pleadings; granting Defendant's 12 Brief in Support of Judgment on the Pleadings/Defendant's Decision; and dismissing this action from the docket of the Court. Signed by Magistrate Judge Cheryl A. Eifert on 5/11/2017. (cc: counsel of record) (jsa)
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McClure v. Berryhill Doc. 13 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 JOSEPH AN TH ON Y MCCLU RE, Plain tiff, v. Cas e N o .: 3 :16 -cv-0 6 70 7 N AN CY A. BERRYH ILL, 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 , 1 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 supplem ental security incom e (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This case is presently before the Court on the parties’ m otions for judgm ent on the pleadings as articulated in their briefs. (ECF Nos. 11, 12). Both parties have consented in writing to a decision by the United States Magistrate J udge. (ECF Nos. 5, 8). The Court has fully considered the evidence and the argum ents of counsel. For the reasons that follow, the Court FIN D S that the decision of the Com m issioner is supported by substantial evidence and should be affirm ed. 1 Pursuant to 42 U.S.C. § 40 5(g) and Rule 25(d) of the Federal Rules of Civil Procedure, the current Acting Com m issioner of the Social Security Adm inistration, Nancy A. Berryhill, is substituted for form er Acting Com m issioner Carolyn W. Colvin as Defendant in this action. 1 Dockets.Justia.com I. Pro ce d u ral H is to ry Plaintiff J oseph Anthony McClure (“Claim ant”) com pleted an application for SSI on Septem ber 27, 20 12, alleging a disability onset date of J anuary 1, 20 0 9,2 due to “bipolar [and] m anic depressive.” (Tr. at 27-28, 148, 166). The Social Security Adm inistration (“SSA”) denied Claim ant’s application initially and upon reconsideration. (Tr. at 10 , 81, 91). On Septem ber 20 , 20 13, Claim ant filed a written request for an adm inistrative hearing, which was held on October 29, 20 14 before the Honorable Sabrina M. Tilley, Adm inistrative Law J udge (“ALJ ”). (Tr. at 24-56). By decision dated Decem ber 12, 20 14, the ALJ determ ined that Claim ant was not entitled to benefits. (Tr. at 10 -20 ). The ALJ ’s decision becam e the final decision of the Com m issioner on May 26, 20 16, when the Appeals Council denied Claim ant’s request for review. (Tr. at 1– 3). On J uly 27, 20 16, Claim ant brought 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 her Answer and a Transcript of the Proceedings on Septem ber 22, 20 16. (ECF Nos. 9, 10 ). Thereafter, the parties filed their briefs in support of judgm ent on the pleadings. Therefore, this m atter is ripe for resolution. II. Claim an t’s Backgro u n d Claim ant was 31 years old at the tim e of his alleged onset of disability and 33 years old at the tim e of the adm inistrative hearings. (Tr. at 10 ). He has a GED and is able to com m unicate in English. (Tr. at 165, 167). Claim ant previously worked as a sales clerk, cashier/ stocker, driver, and laborer. (Tr. at 167). 2 At Claim ant’s adm inistrative hearing before the ALJ , he am ended the alleged onset date to the protected filing date of Septem ber 14, 20 12. (Tr. at 27-28). 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 disability, defined as the “inability to engage in any substantial gainful activity by reason of any m edically determ inable impairm 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 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. § 416.920 . The first step in the sequence is determ ining whether a claim ant is currently engaged in substantial gainful em ploym ent. Id. § 416.920 (b). If the claim ant is not, then the second step requires a determ ination of whether the claim ant suffers from a severe im pairm ent. Id. § 416.920 (c). If severe im pairm ent is present, the third inquiry is 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. Id. § 416.920 (d). If the im pairm ent does, then the claim ant is found disabled and awarded benefits. However, if the im pairm ent does not, 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. § 416.920 (e). After m aking this determ ination, the next step is to ascertain whether the claim ant’s im pairm ents prevent the perform ance of past relevant work. Id. § 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 establish, as the final step in the process, that the claim ant is able to perform other form s of substantial gainful activity, when considering the 3 claim ant’s rem aining physical and m ental capacities, age, education, and prior work experiences. Id. § 416.920 (g); see also McLain v. Schw eiker, 715 F.2d 866, 868-69 (4th Cir. 1983). 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 SSA “m ust follow a special technique at every level in the adm inistrative review.” 20 C.F.R. § 416.920 a. First, the SSA evaluates the claim ant’s pertinent signs, sym ptom s, and laboratory results to determ ine whether the claim ant has a m edically determ inable m ental im pairm ent. If such im pairm ent exists, the SSA docum ents its findings. Second, the SSA rates and docum ents the degree of functional lim itation resulting from the im pairm ent according to criteria specified in 20 C.F.R. § 416.920 a(c). Third, after rating the degree of functional lim itation from the claim ant’s im pairm ent(s), the SSA determ ines the severity of the lim itation. 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 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. 20 C.F.R. § 416.920 a(d)(1). Fourth, if the claim ant’s im pairm ent is deem ed severe, the SSA com pares the m edical findings about the severe impairm ent and the rating and degree and functional lim itation to 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. 20 C.F.R. § 416.920 a(d)(2). Finally, if the SSA finds that the claim ant has a 4 severe m ental im pairm ent, which neither m eets nor equals a listed m ental disorder, the SSA assesses the claim ant’s residual function. 20 C.F.R. § 416.920 a(d)(3). In this case, the ALJ determ ined that Claim ant satisfied the first inquiry because he had not engaged in substantial gainful activity since Septem ber 14, 20 12. (Tr. at 12, Finding No. 1). Under the second inquiry, the ALJ found that Claim ant suffered from the severe im pairm ents of m ood disorder and anxiety disorder. (Tr. at 12-13, Finding No. 2). The ALJ also considered Claim ant’s history of polysubstance abuse, bipolar disorder, and chronic back strain; however, she found that these im pairm ents were non-severe. (Id.). At the third inquiry, the ALJ concluded that Claim ant’s im pairm ents, either individually or in com bination, did not m eet or equal the level of severity of any im pairm ent contained in the Listing. (Tr. at 14-15, Finding No. 3). Consequently, the ALJ determ ined that Claim ant possessed the RFC to: [P]erform a full range of work at all exertional levels, but the following nonexertional lim itations: the claim ant can understand, rem em ber, and carry out sim ple and com plex tasks. He can respond appropriately to occasional interaction with coworkers and supervisors. The claimant can adjust to changes in a work routine in an environm ent free from team work, over-the-shoulder supervision, interaction with the general public, and fastpaced production requirem ents. (Tr. at 15-18, Finding No. 4). The ALJ found that the Claim ant had no past relevant work. (Tr. at 18-19, Finding No. 5). Accordingly, under the fifth and final inquiry, the ALJ reviewed Claim ant’s prior work experience, age, and education in com bination with his RFC to determ ine if he would be able to engage in substantial gainful activity. (Tr. at 1920 , Finding Nos. 6-9). The ALJ considered that (1) Claim ant was born in 1981 and was defined as a younger individual on the date that the application was filed; (2) he had at least a high school education and could com m unicate in English; and (3) transferability of job skills was not an issue because the Claim ant did not have past relevant work. (Tr. 5 at 19, Finding Nos. 6-8). Given these factors, Claim ant’s RFC, and the 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 19-20 , Finding No. 9). At the m edium exertional level, Claim ant could work as a janitor, cleaner, or stock clerk; at the light exertional level, Claim ant could work as a janitor, assem bler, or price m arker; and at the sedentary exertional level, Claim ant could work as a surveillance system m onitor, assem bler, or electronic worker. (Id.). Therefore, the ALJ concluded that Claim ant had not been disabled as defined by the Social Security Act from Septem ber 14, 20 12, through the date of the ALJ ’s decision. (Tr. at 20 , Finding No. 10 ). IV. 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 raises three challenges to the Com m issioner’s decision. First, he claim s that the ALJ erred at step two of the sequential process when she determ ined that Claim ant’s chronic back strain was a non-severe im pairm ent. (ECF No. 11 at 4). Claim ant relies on the consultative examination perform ed by Dr. Kip Beard, who found that Claim ant had “som e discom fort on bending forward with paravertebral tenderness.” He argues that this objective finding, com bined with Claim ant’s subjective com plaints of back pain, m erit a finding that his chronic back strain is severe. (Id. at 5). Second, Claim ant asserts that the ALJ failed to properly consider the opinion of his treating psychiatrist, Marc Spelar, M.D. (Id. at 5-6). In particular, Claim ant alleges that the ALJ should have adopted Dr. Spelar’s opinion that Claim ant would m iss one to two days of work each m onth due to his psychological im pairm ents. The ALJ gave significant weight to som e of Dr. Spelar’s function-by-function assessm ents, but rejected his opinion regarding m issed workdays on the basis that the opinion was not supported by any evidence or rationale. Claim ant accuses the ALJ of cherry-picking from Dr. Spelar’s 6 RFC assessm ent. Finally, in a related challenge, Claim ant posits that the ALJ failed to properly consider the opinion of the vocational expert, who testified that Claim ant would be precluded from gainful em ploym ent if he m issed one to two days of work each m onth. Claim ant contends that Dr. Spelar’s opinion was entitled to controlling weight and, therefore, should have been accepted by the ALJ . Had the opinion been given the weight it deserved, Claim ant would have been found disabled based on the vocational expert’s testim ony. In response, the Com m issioner argues that the ALJ ’s step two determ ination was correct, because Claim ant’s physical findings at Dr. Beard’s exam ination did not dem onstrate a severe back strain. (ECF No. 12 at 9-11). The Com m issioner em phasizes that, to the contrary, Claim ant was able to walk, sit, stand, and squat without difficulty, and his m uscle strength and sensation were norm al. While Dr. Beard noted som e back tenderness on bending, he also confirm ed the absence of spasm and a preserved range of m otion. With respect to Dr. Spelar’s opinion, the Com m issioner noted that the ALJ was not required to adopt the opinion in toto. (Id. at 11). In fact, the ALJ gave great weight to m uch of Dr. Spelar’s RFC assessm ent, scrutinizing each aspect of it and reconciling any discrepancies. The Com m issioner adds that the ALJ properly declined to give controlling weight to Dr. Spelar’s opinion on m issed workdays because the opinion was not consistent with other substantial evidence. In the Com m issioner’s view, the ALJ provided good reasons for rejecting that opinion and good reasons for adopting other portions of Dr. Spelar’s RFC assessm ent. The Com m issioner m aintains that the reasons were supported by substantial evidence. Accordingly, the ALJ fully com plied with agency standards. 7 The Com m issioner further claim s that the ALJ ’s acted appropriately in disregarding testim ony by the vocational expert that was based upon Dr. Spelar’s unsubstantiated opinion regarding Claim ant’s potential to m iss workdays. The Com m issioner indicates that this challenge is derivative of Claim ant’s position regarding Dr. Spelar, which has no m erit. Consequently, this challenge is likewise unavailing. 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, but has confined its sum m ary of Claim ant’s treatm ent records and evaluations to those entries m ost relevant to the issues in dispute. A. Tr e a t m e n t R e co r d s On February 29, 20 12, Claim ant presented to Prestera Centers for Mental Health (“Prestera”), with com plaints of depression and anxiety as evidenced by his blunted expression, m inim al eye contact, and lack of m otivation. (Tr. at 253-56). Claim ant also reported problem s sleeping. Claim ant had been exam ined by Dr. Kazi, a psychiatrist at Prestera, the week prior; however, he had refused m edication recom m ended by Dr. Kazi on the basis that m edication had never helped him in the past. Claim ant told the licensed psychologist, Madeline Arrell, M.A., that he had lost his driver’s license three years earlier due to legal issues. He tried to find work within walking distance to his residence, but was not successful. Therefore, he lived at hom e with his m other and isolated him self from others. Claim ant reported being easily agitated, going for days without sleep and rarely leaving his hom e. Claim ant had no history of psychiatric hospitalization, substance abuse counseling, or intensive outpatient counseling, but he had sought occasional counseling from Prestera in the past. On exam ination, Claim ant exhibited social isolation, blocked speech, deficient 8 coping skills, and a blunted affect. (Tr. at 274-80 ). His thought content was within norm al lim its; he was oriented in all spheres; and his recall m em ory was within norm al lim its. Claim ant was diagnosed with m ood disorder, not otherwise specified (“NOS”), and polysubstance dependency, episodic. He received a Global Assessm ent of Functioning (“GAF”) score of 60 .3 Claim ant agreed to participate in talk therapy and possibly reconsider his refusal to take m edication. At his therapy session on March 14, 20 12, Claim ant told Ms. Arrell he had been involved in a car accident in 20 0 1 and sustained a back injury. (Tr. at 257). This “m essed up” his back resulting in an inability to lift anything; in addition, he becam e nervous when he rode in a car with anyone. Claim ant also reported that he was “very functional” until three years ago when he experienced an anxiety attack while at work that resulted in him being sent hom e. The business closed a few m onths later, so Claim ant was out of work. Claim ant spoke about applying for disability; however, he was not m otivated enough to obtain inform ation necessary to com plete the paperwork. Claim ant attended therapy at Prestera six m ore tim es in 20 12: March 28, J une 6, J une 20 , October 10 , October 24, and Decem ber 5. (Tr. at 258-63). He also canceled, or had canceled, ten additional appointm ents. (Tr.at 283-92). Claim ant regularly expressed anger and depression at his therapy sessions. On March 28, Claim ant was angry with his 3 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 (“DSM”), Am eric. Psych. Assoc, 32 (4th Ed. 20 0 2) (“DSM-IV”). In the past, this tool was regularly used by m ental health professionals; however, in the DSM-5, the GAF scale was abandoned, in part due to its “conceptual lack of clarity” and its “questionable psychom etrics in routine practice.” DSM5 at p. 16. Am eric. Psych. Assoc, 32 (5th Ed. 20 13). GAF scores between 51 and 60 indicate “[m ]oderate 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 girlfriend when he learned that she had m iscarried their baby and never told him . He was also frustrated about not being able to get a job. On J une 6, Claim ant told Ms. Arrell that his m other had to com plete his disability application for him , because he was not m otivated to finish it. (Tr. at 259). Claim ant described his day as waking, showering, and then either going back to bed or sitting and listening sat to m usic. He did not want to be around people and did not like television. He blam ed his depression on living in West Virginia, stating that people were friendlier in Florida. The topic of m edication was raised; however, Claim ant continued to refuse it as he did not like to feel “knocked out” all the tim e. On J une 20 , Claim ant appeared to be depressed with sym ptom s of anhedonia and lack of m otivation. (Tr. at 260 ). Claim ant told Ms. Arrell that he wanted to find work, but was in constant pain due to past accidents. Claim ant continued to refuse m edication, stating m arijuana would help him function better. By October 10 , Claim ant reported he had been denied disability and had retained an attorney who suggested Claim ant begin taking m edication; however, Claim ant was not willing to do so. (Tr. at 261). Claim ant discussed his distrust of m edication, his self-im posed isolation, and his lack of sleep. Claim ant was fully oriented, dem onstrating norm al thought content; however, he appeared socially isolated, spoke rapidly, lacked sufficient coping skills, and presented a flat affect. Claim ant was assessed with m ood disorder, NOS, and was given a GAF score of 55. (Tr. at 264-70 ). On October 24, Claim ant reported racing thoughts, lack of sleep, and frustration with people. (Tr. at 262). Claim ant still refused to take m edications, because they m ade him feel em otionless. Claim ant advised that he had recently learned that he m ight have a four-year-old son, and he was happy about the news, but was also nervous. Accordingly, 10 he got drunk. By his session on Decem ber 5, Claim ant recognized that he was not im proving and stated that he was tired, on edge, irritable, and continued to bite his fingernails to the quick. (Tr. at 263). Claim ant discussed his preference for using pot and alcohol instead of psychotropic m edication to control his sym ptom s. Claim ant did note that his therapy sessions helped him and “worked better than any m edication I ever took.” (Id.). Claim ant presented for therapy at Prestera in 20 13, beginning on J anuary 2 and continuing therapy that year for another seventeen sessions. (Tr. at 235-247, 297-30 5). On J anuary 2, 20 13, Claim ant discussed his stress level and lack of sleep. (Tr. at 235). Claim ant was living with a friend instead of his m other. He adm itted that his m other gave him Xanax pills, and they calm ed his anxiety around other people. Claim ant was not sm oking m arijuana anym ore and felt his m em ory was im proving. Claim ant and Ms. Arrell discussed Claim ant’s refusal to take psychotropic m edication and Ms. Arrell’s belief that Claim ant would function better with the right treatm ent. Claim ant agreed to see Dr. Kazi again. On J anuary 16, 20 13, Claim ant told Ms. Arrell that he had not done m uch of anything since their session two weeks earlier. (Tr. at 236). He was depressed and had a “cloudy” sensorium . Claim ant answered the questions put to him and was cooperative, but he was not initiating any of the discussion and had nothing in particular to say. Ms. Arrell ended the session early, as Claim ant was sim ply sitting with his head on the table and yawning. Claim ant saw Dr. Kazi on J anuary 30 , 20 13. (Tr. at 244-47). At that visit, Claim ant appeared unkem pt with agitated m otor activity and guarded attitude. His eye contact and speech were within norm al lim its. Claim ant’s affect was labile; his thought process was 11 goal directed with appropriate thought content, and he appeared alert, although Dr. Kazi noted that Claim ant appeared dism issive as he continued to check his cell phone for m essages throughout the exam ination. Claim ant told Dr. Kazi he wanted m edication to control his anger and irritability. In addition, Claim ant com plained of anxiety, excessive worry, and sleep issues. Claim ant told Dr. Kazi he remained sober; however, his m other gave him Xanax periodically. Claim ant was assessed with episodic m ood disorder, NOS, and polysubstance dependency, episodic. Claim ant continued to maintain a GAF score of 60 . Dr. Kazi prescribed Tegretol, and Claim ant agreed to start the m edication. Claim ant also saw Ms. Arrell that day, but they had a shortened session in anticipation of Claim ant’s visit with Dr. Kazi. Claim ant returned to Dr. Kazi on February 13, 20 13. (Tr. at 248-51). Claimant appeared agitated with a labile affect and guarded attitude, although his speech was norm al, his thought process was goal directed, and his thought content was appropriate. Claim ant’s assessm ent and GAF score rem ained the sam e. Dr. Kazi prescribed Tegretol, Lam ictal, and BuSpar. Claim ant presented for therapy with Ms. Arrell on March 27, 20 13. Claim ant told Ms. Arrell he had stopped taking the m edication prescribed for him by Dr. Kazi, as “they ain’t working.” (Tr. at 238). Claim ant appeared depressed with a constricted affect. Ms. Arrell described Claim ant as resistant to any attem pt to change or redirect his em otion, thought processes, or behaviors, as evidenced by taking his m edication for only one m onth before quitting. Claim ant com plained of being “on edge” while waiting for a reconsideration decision from the SSA, stating that if he was awarded benefits, he would “be out of here.” (Id.). At his next session on April 10 , Claim ant presented with a euthym ic m ood and 12 broad affect. (Tr. at 239). He was not taking prescribed m edication, but rem arked that he “feels better now.” (Id.). He m et a new girl, who was living at the residence where he was living, and he liked her. Claim ant spoke about his disability claim , acknowledging that waiting for a decision was stressful. He stated that he had not been able to look for work “on advice of his lawyer.” Ms. Arrell predicted that if Claim ant was denied disability benefits, his m ood and level of agitation m ight change drastically. Claim ant returned to Prestera on May 2, 20 13, complaining of an increase in sym ptom s related to his living situation, issues with his new girlfriend, and the denial of his Social Security disability claim . (Tr. at 240 ). Claim ant appeared agitated with a constricted affect. He spoke about anger issues and agreed to restart m edication to control his sym ptom s. When he presented for follow up on May 22, Claim ant reported that Dr. Kazi had prescribed Lam ictal, which Claim ant was taking at double the regular dosage per Dr. Kazi’s recom m endation. Claim ant com plained that he felt “all over the place” with his em otions going from one extrem e to the next. (Tr. at 241). He also reported having num erous argum ents with his girlfriend and getting little sleep. Nevertheless, Claim ant appeared m ore alert at this session, though m ore prone to agitation, with a dysphoric affect. Claim ant agreed to continue his m edication for another week to see if it would alleviate his sym ptom s. Claim ant returned on J une 19, reporting to Ms. Arrell that he had left hom e for a few days and while gone, took “hard core stuff, cocaine, weed and alcohol.” (Tr. at 242). Claim ant also talked about trying to cut his wrists and said that his m other had given him three Xanax a day for the past three days to calm him . Ms. Arrell suggested that Claim ant get crisis treatm ent, but he refused, likening Prestera’s crisis unit to jail. He likewise resisted Ms. Arrell’s suggestion that he look for work, stating “I don’t trust m yself out; 13 som eone would m ake m e m ad.” (Id.). Claim ant had stopped taking Lam ictal and told Ms. Arrell he was not interested in trying other m edication. Throughout his sessions with Ms. Arrell in J uly, August, Septem ber, and October, Claim ant continued to com plain of sleep and anger issues, relationship problem s with his girlfriend, depression, and anxiety. (Tr. at 243, 297-30 3). On October 23, 20 13, Claim ant presented to Dr. Kazi again complaining of anxiety and sleep issues. (Tr. at 348-51). Dr. Kazi noted Claim ant was not taking the prescribed m edication. Claim ant appeared agitated with a labile m ood and guarded attitude. His speech was norm al, his thought process was goal oriented, and his thought content was appropriate. Claim ant’s assessm ent and GAF score rem ained unchanged. Dr. Kazi prescribed Rem eron, which Claim ant agreed to try. Claim ant also saw Ms. Arrell on October 23, 20 13. (Tr. at 30 3). He reported sleeping disturbances, irritability, agitation, and anger directed toward other people. Claim ant com plained about his prior problem s with work, and Ms. Arrell suggested that he contact the West Virginia Departm ent of Rehabilitation for assistance. Claim ant returned to Ms. Arrell on Novem ber 6, 20 13 with com plaints of lack of sleep and depression. (Tr. at 30 4). Claim ant reported that he had no m otivation, was worried about his ongoing disability case, and was currently not taking the m edication prescribed for him . Claim ant com plained about having no m oney and about living in his m other’s hom e with a cousin who did nothing but eat and watch television. Claim ant appeared depressed and anxious with a relaxed, broad m ood. Ms. Arrell suggested Claim ant obtain a punching bag to help him exercise and relieve tension. On Decem ber 5, 20 13, Claim ant returned for therapy with Ms. Arrell. (Tr. at 30 5). Claim ant reported his “nerves were shot” and he had been biting his fingernails down to the quick. Claim ant appeared anxious with a broad affect. He reported that he and his ex14 girlfriend had started seeing each other again and he was not sure how he felt about their relationship. He continued to worry about his disability claim and resisted any change in thoughts to redirect him from his em otions about the claim . Claim ant participated in therapy at Prestera with Ms. Arrell in 20 14; attending sixteen sessions in addition to being exam ined throughout the course of that year by Marc Spelar, M.D. (Tr. at 30 6-26, 338-47, 352-55, 356-59, 360 -64). On J anuary 15, 20 14, Claim ant told Ms. Arrell that he felt stressed due to fam ily issues. (Tr. at 30 6). Claim ant reported that he was working at a fast food restaurant one day a week but relayed that having to get dressed and go to work m ade him feel “physically sick” and he “scream [ed] really loud” on his way hom e because he knew he had to “go back the next day.” (Id.). Claim ant com plained that he hated “stupid” people and resented som eone younger than him telling him when he could take a sm oking break. Claim ant’s m ood was depressed; his affect was broad. Claim ant indicated that he was attem pting to schedule an appointm ent with the physician at Prestera in order to obtain m edication for his “nerves.” Claim ant continued to feel anxious and depressed at his sessions in J anuary and February, although he rem ained em ployed, working 12-14 hours per week. (Tr. at 30 70 8). Claim ant expressed his distaste at having to deal with other people, indicating that he grew im patient with people who “just want to talk” when he did not “want to listen to them .” (Tr. at 30 7). He had developed a new hobby of playing internet chess and m ahjong and felt that these gam es helped him to relax. Claim ant also discussed his stress over his relationship with his girlfriend, whom he described as being “very m oody.” (Tr. at 30 8). On February 11, 20 14, Claim ant saw Dr. Marc Spelar, requesting help for control of his m ood swings, anxiety and irritability. (Tr. at 352-55). Claim ant presented with an appropriate affect, norm al eye contact, and m otor activity. His thought process was goal 15 directed and logical. Claim ant dem onstrated appropriate thought content and appeared alert. Claim ant continued to m aintain a GAF score of 60 . Dr. Spelar recom m ended Claim ant continue taking Rem eron and begin taking BuSpar; however, he declined to refill Claim ant’s prescription for Valium . On March 12, Claim ant reported to Ms. Arrell that he was term inated from his em ploym ent as he had trouble reading the schedule and had m issed his shift twice; however, he took consolation in the thought that he did not “like that job anyway.” (Tr. at 30 9). Claim ant adm itted during the course of his session that he was procrastinating looking for another job, because the weather was nice and he currently had som e m oney. At this tim e, Claim ant appeared m ore relaxed, less depressed, and had a broad affect. On April 9, 20 14, Claim ant advised Ms. Arrell that he was having m ore trouble with his girlfriend and was stressed that his lawyer had not returned six telephone calls that Claim ant placed to him in the past two weeks. (Tr. at 310 ). Claim ant presented to Dr. Spelar on April 22, 20 14. (Tr. at 356-59). Claim ant told Dr. Spelar he m issed the prior week’s dose of BuSpar but was continuing to take Valium as it helped relieve his anxiety. During the exam ination, Claim ant appeared cooperative, with norm al speech and m otor activity. His m ood was “ok” and his affect appropriate. Claim ant was alert, dem onstrating logical, goal directed thoughts. Dr. Spelar observed that Claim ant’s gait was within norm al lim its. Neither Claim ant’s assessm ent, nor his GAF score changed from his prior exam ination. Dr. Spelar prescribed a course of Valium , advising Claim ant he could refill the present dose upon request as appropriate. In addition, Dr. Spelar advised Claim ant to begin taking BuSpar. Throughout his therapy sessions in April, May, and J une 20 14, Claim ant com plained of feeling depressed, anxious, and angry. (Tr. at 310 -17). Claim ant reported 16 at his April 22 session that he had stopped taking BuSpar because it did not relieve his sym ptom s. (Tr. at 311). Claim ant stated that he was very angry with his m other and cousin. According to Claim ant, his cousin lived with Claim ant and his m other and ate all the food in the house. The cousin weighed 40 0 pounds, had Crohn’s Disease, and did not care properly for him self. Claim ant described his m other as an enabler, indicating that she tended to the cousin’s every need, even though he was capable of doing som e things for him self. Claim ant also advised that he and his girlfriend fought constantly, and he wanted her to m ove out of the residence, but had not taken steps to accom plish this. On May 7, Claim ant told Ms. Arrell that he had “put out” his girlfriend a week earlier, went to a bar to celebrate his freedom , and consum ed twelve beers. (Tr. at 313). Claim ant adm itted to taking two Valium before the counseling session, which gave him a “chilled out m ood.” Claim ant discussed feeling anxious over his disability application, stating that he was waiting for a hearing on the application to be scheduled. He had finally heard from his lawyer, who thought it would be another few m onths before he would know when the hearing would take place. In the m eantim e, Claim ant planned to look for a parttim e job. He returned to Ms. Arrell for therapy on May 21, J une 4, and J une 18. Each tim e, Claim ant advised that he was staying away from people, had sleep issues, and was worried about his disability claim . (Tr. at 314-17). When Claim ant appeared on J uly 2 for therapy with Ms. Arrell, he reported sleep issues and a desire to stay away from other people, com paring him self to a “hibernating bear.” (Tr. at 318). Claim ant was taking BuSpar, but had m issed one week, and Valium , which he took every other day. Claim ant exercised by m owing the lawn every 5-6 days. Claim ant appeared depressed with a constricted, blunted affect. Ms. Arrell noted that Claim ant’s current m edications had shown som e efficacy, although m onitoring was 17 required as he was non-com pliant with the m edication protocol. (Tr. at 341). Claim ant dem onstrated social isolation, deficient coping skills, and thought blocking; however, his speech, appearance, and recall m em ory were norm al. (Tr. at 343-44). Claim ant was assessed with m ood disorder, NOS, with a GAF score of 55. One week later, on J uly 9, Claim ant was exam ined by Dr. Spelar. (Tr. at 360 -64). Claim ant adm itted to Dr. Spelar that he was not taking BuSpar as prescribed, because he did not want to use any m edication that had to be taken on a regular or daily basis, and he did not feel it relieved his sym ptom s. Claim ant did take Valium , but noted that m arijuana worked better at controlling his anxiety. While he did have som e sym ptom ology that bordered on panic disorder or panic attack, Dr. Spelar did not believe Claim ant m et the criteria for either diagnosis. On exam ination, Claim ant was alert, cooperative, and pleasant with norm al speech, appropriate affect, logical and goal directed thought process, as well as appropriate thought content. Claim ant was assessed with episodic m ood disorder, NOS, and com bination drug dependency, episodic. Dr. Spelar noted Claim ant had a history of cocaine, m arijuana, and alcohol abuse, reported by Claim ant to be in full, sustained rem ission as to the drugs and early partial rem ission as to alcohol. His GAF score was 60 . Dr. Spelar decided to discontinue BuSpar and start Claim ant on Inderal for anxiety. (Tr. at 363). Claim ant returned for therapy with Ms. Arrell on J uly 30 , 20 14, stating that he was having a “pretty good day.” (Tr. at 319). Claim ant advised that he was taking Valium and Inderal, although not on the sam e day, and had stopped taking BuSpar, because he did not want to m aintain a strict schedule. Claim ant’s m ood was euthym ic and his affect was congruent. Ms. Arrell rem arked she had never seen Claim ant this rested or relaxed. On August 27, Claim ant presented for therapy with Ms. Arrell. He continued to 18 take the prescribed m edication, but adm itted taking m ore Valium in a day than the recom m ended dose. (Tr. at 320 ). Claim ant described feelings of agitation and depression, and reported having fam ily conflict. He stated that he had experienced a “borderline panic attack” in Walm art recently, because “there was so m uch going on there.” (Id.). Claim ant told Ms. Arrell he was still angry with his m other and cousin and would not do tasks that his m om asked him to do, such as m owing the lawn, because he did not like taking direction from anyone. His m ood at this session was depressed and agitated, and his affect was som ewhat constricted. Claim ant continued his therapy sessions in Septem ber and October 20 14. On Septem ber 10 , Claim ant’s m ood was stable with a broad affect. (Tr. at 322). He reported going to the beach with a friend, but had to “triple his m edication” and sleep in order to tolerate the drive. He continued to avoid going out in public and to avoid people. Claim ant had a disability hearing scheduled and found him self dwelling on the upcom ing hearing. Ms. Arrell discussed Claim ant’s diagnosis with him . She confirm ed with Claim ant that he was not diagnosed with bipolar disorder. At his Septem ber 24 session, Claim ant reported having gone out for an evening, gotten drunk, and spent the night at a fem ale friend’s apartm ent. He awoke with the friend’s ex-boyfriend punching him in the face. Claim ant’s orbital socket was fractured, and he had injuries to his face. (Tr. at 324). Claim ant received pain m edication at the hospital and was taking that in place of his psychotropic m edication. During the session, Claim ant expressed anger at the m an who beat him and distrust of the legal system . Claim ant had gone to court on charges filed against the m an, but the m an did not show up for the hearing. On October 8, Claim ant stated that he was still recuperating from the attack. (Tr. at 326). He expressed som e concern over the way his wounds were healing. 19 Claim ant also reported that he was “super freaking out” over his disability hearing, which was to be held in three weeks. He adm itted that he did not know what he would do if the decision did not go in his favor. B. Co n s u lt a t iv e Exa m in a t io n s a n d Op in io n Ev id e n ce On March 11, 20 13, Elizabeth A. Bodkin, M.A., com pleted a m ental status exam ination and clinical interview at the request of the Disability Determ ination Service. (Tr. at 225-28). Ms. Bodkin observed that Claim ant had norm al gait and posture and did not require the use of any device to am bulate. He was cooperative with a good attitude. Claim ant reported that he lived with his m other and had no income. He stated that he had applied for disability benefits because he “was not functioning in society. I get so tensed up around people. If som ebody looks, I fester inside and I’m super on edge and super jum py.” (Tr. at 225). Claim ant indicated that his sym ptom s started years earlier. (Tr. at 226). He described difficulty sleeping and an anxious m ood; however, Ms. Bodkin found no evidence of phobias, panic attacks, obsessions, com pulsions, or posttraum atic stress sym ptom s. Claim ant treated with Prestera every other week and took BuSpar. He had a history of one adm ission to Prestera’s crisis unit, which had occurred approxim ately three years prior and lasted for one week. Claim ant denied current use of illegal drugs, although he adm itted to a history of daily cocaine use for a period of two years, with the last use being one year ago. Claim ant had also tried other recreational substances in the past and had abused Xanax. With respect to school and work history, Claim ant stated that he com pleted the 11th grade, but dropped out of school at age 15 because he “wasn’t learning anything.” (Tr. at 226). He last worked for a delivery service and as a cashier, but had not worked for three years. Claim ant adm itted to four arrests for charges including drug paraphernalia, assault, and destruction of property. 20 On exam ination, Claim ant m ade good eye contact, interacted appropriately, and provided adequate verbal responses. He was fully oriented, but had a dysphoric m ood and restricted affect. His thought processes, thought content, and speech were norm al. Claim ant showed fair insight, and his judgm ent was within norm al lim its. His im m ediate, recent and rem ote m em ory was within norm al lim its. Ms. Bodkin found Claim ant’s concentration and persistence m ildly deficient; however, his psychom otor behavior was within norm al lim its, as was his pace. Ms. Bodkin diagnosed Claim ant with bipolar disorder, NOS, and anxiety disorder, NOS. She explained that the diagnosis of bipolar disorder was based upon Claim ant’s report of sym ptom s and his treatm ent at Prestera. The diagnosis of anxiety disorder was based upon Claim ant’s report of frequent anxiety and worry. Ms. Bodkin felt that Claim ant’s prognosis was fair, and he currently had the ability to m anage his own finances. Kip Beard, M.D., perform ed a consultative internal m edicine exam ination at the request of the Disability Determ ination Service on March 19, 20 13. (Tr. 220 -23). Claim ant’s chief com plaint was a back injury secondary to a m otor vehicle accident in 20 0 1. Claim ant described constant m id to lower back pain that was dull to sharp, becam e sharper with activity, and averaged an eight on a ten-point pain scale. He indicated that lifting, bending, or standing repetitively exacerbated the pain, and he had days when he “cannot m ove out of the bed.” Claim ant also m entioned he could play basketball for about twenty m inutes before his back would begin to hurt. As for treatm ent, Claim ant reported participating in physical therapy and taking pain m edication in 20 0 1. However, Claim ant did not have health insurance and was not receiving any treatm ent at the tim e of the exam ination. Claim ant also advised Dr. Beard that he had bipolar disorder and took BuSpar. 21 Claim ant’s review of system s was essentially negative except for back pain. (Tr. at 221). He denied any neurological, respiratory, cardiovascular, and gastrointestinal sym ptom s. Dr. Beard did not have treatm ent records to review prior to exam ining Claim ant. On exam ination, Claim ant could walk normally without any assistive devices. He could stand unassisted, rise from a seated position, and step up and down from the table without issue. He appeared com fortable both in the seated and supine positions. Claim ant’s head, neck, throat, eyes, ears, chest, cardiovascular system , abdom en, and extrem ities were all norm al. (Tr. at 222). An exam ination of the cervical spine revealed no spinous process or m uscular tenderness, and no evidence of paravertebral m uscular spasm . Range of m otion of the cervical spine was without lim itations. Claim ant’s arm s, shoulder, hands, elbows, wrists, knees, ankles, and feet were without tenderness, redness, warm th, swelling, effusion, laxity, nodules, or crepitation. Range of m otion of these lim bs and joints was norm al. Claim ant could pick up coins with both hands and write with the dom inant hand without difficulty. Exam ination of Claim ant’s dorsolum bar spine revealed a norm al curvature and norm al range of motion; however, Claimant com plained of m ild discom fort with forward bending with som e paravertebral tenderness, although no spasm was noted. Claim ant could stand on one leg without issue. His hips were pain free with norm al range of m otion. A seated and supine straight leg raising test was asym ptom atic at 90 degrees on the right side, but Claim ant had m ild discom fort behind the knee on the left side. However, he had no weakness, atrophy, or sensory loss indicative of radiculopathy. The rem ainder of Claim ant’s neurological examination was likewise unrem arkable. Deep tendon reflexes of the biceps m easured 2+, of the triceps 1+, of the patellae 2+, and of the Achilles 1+. Claim ant could heel-walk, toe-walk, tandem walk and 22 squat. Dr. Beard assessed Claim ant with chronic thoracolum bar strain. On April 15, 20 13, Ann Logan, Ph.D., com pleted a Psychiatric Review Technique, finding Claim ant had m edically determ inable im pairm ents of affective disorder (Listing 12.0 4) and anxiety disorder (Listing 12.0 6); however, the com bination of im pairm ents was not severe and did not precisely satisfy the diagnostic criteria. (Tr. at 69-70 ). Dr. Logan found Claim ant m ildly lim ited in his restriction of activities of daily living, m aintaining social function, concentration, persistence and pace; he had no episodes of decom pensation and no evidence to establish the presence of the “C” criteria. Dr. Logan determ ined that Claim ant was partially credible as she found his allegations were not fully supported by the m edical records. On August 2, 20 13, Karl G. Hursey, Ph.D., opined on reconsideration that Claim ant’s m ental im pairm ents were not alleged to have worsened nor were there any new allegations of m ental im pairm ents. (Tr. at 77-78). In addition, Claim ant’s activities of daily living had not changed, and there were no new m edical records for review. Dr. Hursey evaluated the available evidence and confirm ed Dr. Logan’s assessm ent as written. On April 11, 20 13, Fulvio Franyutti, M.D., com pleted a Physical Residual Functional Capacity Assessm ent. (Tr. at 70 -71). Dr. Franyutti opined that Claim ant did not have any exertional lim itations in lifting, carrying, walking, standing, sitting, pushing or pulling or any non-exertional lim itations including postural, m anipulative, visual, com m unicative, or environm ental. Claim ant was found to have a physically non-severe RFC. On August 5, 20 13, A. Rafael Gom ez, M.D., com pleted an RFC with findings identical to those of Dr. Franyutti. (Tr. at 79). On October 27, 20 14, Marc Spelar, M.D., com pleted an Ability to do Work-Related Activities (Mental) form . (Tr. at 293-96). At that tim e, Claim ant’s diagnoses were m ood 23 disorder, NOS, and anxiety disorder, NOS. His current GAF score was 60 , which was also his highest score during the past year. Claim ant’s m edication regim en included Valium , Topam ax, and Inderal. Dr. Spelar opined that Claim ant’s m ental im pairm ent and sym ptom s were m oderate, and his prognosis was fair with adherence to treatm ent. On a function-by-function basis, Dr. Spelar opined that Claim ant had no lim itations in understanding, rem em bering, and carrying out sim ple instructions and m aking judgm ents on sim ple work related decisions; he had m ild lim itations with understanding, rem em bering, and carrying out com plex instructions and responding appropriately to usual work situations and changes in a routine work setting. (Tr. at 294). Claim ant had m oderate lim itations in interacting appropriately with the public, supervisors and coworkers. As for Claim ant’s signs and sym ptom s, Dr. Spelar noted that Claim ant had no signs or sym ptom s of: loss of interest in m ost activities, appetite disturbance, thoughts of suicide, inappropriate affect, poverty of speech content, persistent generalized anxiety, recurrent and intrusive recollection of traum atic events, pathological dependence, pathological passivity or aggressiveness, paranoid thinking, recurrent obsessions or com pulsions causing m arked distress, seclusiveness, incoherence, isolation, bipolar syndrom e, disorientation to tim e and place, thinking disturbances, hallucinations, delusions, hyperactivity, catatonia, em otional inability, flight of ideas, m ania, inflated self-esteem , unrealistic interpretation of physical signs and sensations, loose associations, pathological suspiciousness or hostility, oddities of thought, oddities of perception and speech, oddities of behavior, or a decreased need for sleep. (Tr. at 29495). He had m ild signs and sym ptom s of decreased energy, feelings of guilt or worthlessness, im pairm ent of im pulse control, psychom otor agitation or retardation, persistent disturbances of m ood or affect, apprehensive expectation, em otional 24 withdrawal or isolation, persistent irrational fear of a specific object, activity or situation, intense and unstable interpersonal relationships, m otor tension, deeply ingrained, m aladaptive patterns of behavior, easily distracted, m em ory im pairm ent, sleep disturbance, and panic attacks. He had m oderate signs and sym ptom s of m ood disturbance and difficulty thinking or concentrating. Dr. Spelar also opined that, on average, Claim ant’s im pairm ents would cause him to be absent from work one to two days per m onth. (Tr. at 295). VI. Stan d ard o f Re vie w The issue before the Court is whether the final decision of the Com m issioner is based upon an appropriate application of the law and is supported by substantial evidence. See Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). In Blalock v. Richardson, the United States Court of Appeals for the Fourth Circuit defined “substantial evidence” to be: [E]vidence 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)). This Court is not charged with conducting a de novo review of the evidence. Instead, the Court’s function is to scrutinize the record and determ ine whether it is adequate to support the conclusion of the Com m issioner. Hay s, 90 7 F.2d at 1456. When conducting this review, the Court does not re-weigh evidence, m ake credibility determ inations, or substitute its judgm ent for that of the Com m issioner. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 20 0 1) (citing Hay s, 90 7 F.2d at 1456)). Moreover, “[t]he fact that the record as a whole m ight support an inconsistent conclusion is im m aterial, for the language of § 25 20 5(g) ... requires that the court uphold the [Com m issioner’s] decision even should the court disagree with such decision as long as it is supported by ‘substantial evidence.’” Blalock, 483 F.2d at 775 (citations om itted). Thus, the relevant question for the Court is “not whether the claim ant is disabled, but whether the ALJ ’s finding of no disability is supported by substantial evidence.” Johnson v. Barnhart, 434 F.3d 650 , 653 (4th Cir. 20 0 5) (citing Craig, 76 F.3d at 589). VII. D is cu s s io n Claim ant challenges the ALJ ’s step two determ ination and lodges two related criticism s arising from the weight given by the ALJ to Dr. Spelar’s RFC assessm ent. The Court will address the first challenge separately and will discuss the related challenges together. A. ALJ’s St e p Tw o D e t e r m in a t io n At the second step of the disability determ ination process, the ALJ found that Claim ant had severe im pairm ents of “m ood disorder and anxiety disorder.” (Tr. at 12). The ALJ also considered Claim ant’s history of polysubstance abuse, bipolar disorder, and chronic back strain, but did not find any of these conditions to be severe. (Tr. at 12-13). With respect to Claim ant’s chronic back strain, the ALJ reviewed in detail the exam ination findings of Dr. Kip Beard and ultim ately concluded that “the claim ant’s back strain is a non-severe im pairm ent because the claim ant has not received treatm ent for it for m any years according to his own report, and Dr. Beard’s exam ination showed m inim al evidence of im pairm ent.” (Tr. at 13). Claim ant argues that the ALJ “failed to properly consider the opinion of Kip Beard” and ignored Claim ant’s subjective com plaints of severe back pain. 26 Title 20 C.F.R. §416.920 explains the five-step process followed by an ALJ when evaluating an application for SSI. At the second step of the process, the ALJ m ust determ ine whether the claim ant has an im pairm ent or com bination of im pairm ents that is severe. Id. at §416.920 (a)(4)(ii). “An im pairm ent or com bination of im pairm ents is not severe if it does not significantly lim it [a claim ant’s] physical or m ental ability to do basic work activities.” Id. at § 416.922. Basic work activities are “the abilities and aptitudes necessary to do m ost jobs.” Id. Exam ples of basic work activities include: (1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and rem em bering sim ple instructions; (4) Use of judgm ent; (5) Responding appropriately to supervision, co-workers and usual work situations; and (6) Dealing with changes in a routine work setting. Id. The claim ant bears the burden of proving that an im pairm ent is severe, Grant v. Schw eiker, 699 F.2d 189, 191 (4th Cir. 1983), and does this by producing m edical evidence establishing the condition and its effect on the claim ant’s ability to work. W illiam son v. Barnhart, 350 F.3d 10 97, 110 0 (10 th Cir. 20 0 3). The m ere presence of a condition or ailm ent is not enough to dem onstrate the existence of a severe im pairm ent. Moreover, to qualify as a potentially disabling im pairm ent, the severe im pairm ent m ust have lasted, or be expected to last, for a continuous period of at least twelve m onths, 20 C.F.R. § 416.90 9, and m ust not be controlled by treatm ent, such as m edication. Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). In this case, substantial evidence supports the ALJ ’s determ ination that Claim ant’s 27 chronic back strain was not a severe im pairm ent. The only m edical evidence relevant to Claim ant’s back strain was the report prepared by consultative exam iner, Dr. Kip Beard. As the ALJ noted, at the exam ination, Claim ant walked with a norm al gait; required no am bulatory aids; stood unassisted; rose from a seated position with ease; and could step up and step down from Dr. Beard’s exam ination table without difficulty. (Tr. at 221). Claim ant was com fortable in both the sitting and supine positions, and he could heelwalk, toe-walk, and tandem walk. Although Claim ant com plained of som e tenderness and discom fort on forward bending, his spinal range of m otion was norm al and there was no evidence of m uscle spasm . Claim ant could stand on one leg without difficulty; had no leg length discrepancy, m uscle weakness, or atrophy; his sensations were intact; his reflexes were sym m etric; and he com plained of only m ild, nonspecific discom fort behind the left knee on bilateral straight leg raise. Claim ant produced no m edical evidence dem onstrating that his m ild back discom fort actually lim ited his ability to do any basic work activity. In addition to the unrem arkable findings on exam ination, two nonexam ining m edical sources reviewed the file and found that Claim ant had no severe physical im pairm ent. (Tr. at 70 -71, 79). Finally, the ALJ reasonably took into account that the underlying injury to Claim ant’s back, which he claim ed to be the source of his chronic strain, occurred long before the alleged onset of disability and had not required any m edical care for m any years. Therefore, the Court finds that the ALJ did not err in her determ ination that Claim ant’s back strain was a non-severe im pairm ent. Claim ant bore the burden of establishing the nature of the im pairm ent and its lim iting effect on his ability to work. He sim ply failed to m eet that burden. 28 B. D r . Sp e la r ’s Op in io n Claim ant asserts two related challenges concerning the weight the ALJ gave to the RFC assessm ent of Dr. Spelar, Claim ant’s treating psychiatrist. Specifically, he contends that the ALJ failed to properly weigh Dr. Spelar’s opinion that Claim ant would m iss one to two workdays per m onth due to psychological sym ptom s or treatm ent. Claim ant adds that if the ALJ had properly weighed Dr. Spelar’s opinion, she would not have rejected the testim ony of the vocational expert, who confirm ed that m issing one to two days of work per m onth would preclude Claim ant from obtaining gainful em ploym ent. The Court finds these challenges to be without m erit. For SSI claim s filed before March 27, 20 17, 20 C.F.R. § 416.927(c) outlines how m edical opinions will be weighed in determ ining whether a claim ant qualifies for benefits. In general, the SSA will give m ore weight to the opinion of an exam ining m edical source than to the opinion of a non-exam ining source. See 20 C.F.R. ' 416.927(c)(1). Even greater weight will 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 claim ant=s alleged disability. Id. at ' 416.927(c)(2). Indeed, a treating physician’s opinion will be afforded controlling weight if two conditions are m et: “(1) the opinion is well-supported by clinical and laboratory diagnostic techniques and (2) it is not inconsistent with other substantial evidence.@ W ard v. Chater, 924 F. Supp. 53, 55 (W.D. Va. 1996); see also, 20 C.F.R. ' 416.927(c)(2). The opinion of a treating physician m ust be weighed against the record as a whole when determ ining eligibility for benefits. Id. at ' 416.927(c)(2). If the ALJ determ ines that a treating physician=s opinion should not be afforded controlling weight, the ALJ m ust then analyze and weigh all the evidence of record, taking into account the factors listed in 29 ' 416.927(c)(2)-(6). These factors include: (1) length of the treatm ent relationship and frequency of evaluation, (2) nature and extent of the treatm ent relationship, (3) supportability, (4) consistency, (5) specialization, and (6) various other factors. Id. “A finding that a treating source’s m edical opinion is not entitled to controlling weight does not m ean that the opinion is rejected. It m ay still be entitled to deference and be adopted by the adjudicator.” Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *1 (J ul. 2, 1996). In order for a claim ant to understand (1) why a treating source’s opinion was not given controlling weight and (2) how the opinion was used by the Com m issioner in reaching his determ ination, the SSA, through the ALJ , “will always give good reasons in our notice of determ ination or decision for the weight we give your treating source’s opinion.” 20 C.F.R. ' 416.927(c)(2). In Social Security Ruling 96-2p, the SSA further explains the ALJ ’s obligation to explain the weight given to a treating source’s m edical opinion (i.e. on the nature and severity of an individual’s im pairm ent), stating as follows: When the determ ination or decision: is not fully favorable, e.g. is a denial … the notice of determ ination or decision m ust contain specific reasons for the weight given to the treating source’s m edical opinion, supported by the evidence in the case record, and m ust be sufficiently specific to m ake clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s m edical opinion and the reasons for that weight. Id. at *5. Here, the ALJ thoroughly reviewed the records from Claim ant’s counseling sessions and psychiatric visits. (Tr. at 17-18). She then analyzed and discussed all of the opinion evidence. (Tr. at 18). The ALJ gave no opinion controlling weight; thus, she weighed each one as required by Social Security rules and regulations. Beginning with the non-exam ining consultants, the ALJ noted that they found Claim ant’s m ental im pairm ents to be non-severe. The ALJ gave som e weight to the opinions, but discounted 30 them to a degree, because the consultants did not have access to all of Claim ant’s m ental health treatm ent notes and did not see the RFC assessm ent prepared by Dr. Spelar. Looking next at Dr. Spelar’s RFC assessm ent, the ALJ discussed his function-byfunction findings and gave them significant weight, with the exception of his opinion that Claim ant would m iss one to two days of work per m onth due to psychological im pairm ent or treatm ent. The ALJ explained that this particular opinion was given little weight, because Dr. Spelar provided no rationale or supporting evidence to verify the existence of such a lim itation. The Court finds no error with the ALJ ’s conclusion. Certainly, the ALJ acted appropriately in assessing the supportability of Dr. Spelar’s function-by function assessm ent and in rejecting any portion of the assessm ent that was not bolstered by the record. Furtherm ore, as the Com m issioner points out, an ALJ m ay give great weight to an expert's opinion without incorporating every one of the expert’s findings and lim itations. See, e.g., Laing v. Colvin, No. SKG– 12– 2891, 20 14 WL 671462, at *10 (D. Md. Feb. 20 , 20 14) (“Although the ALJ accorded ‘great weight’ to the state agency psychologists, he was not required to adopt every single opinion set forth in their reports.”) (citing Bruette v. Com m 'r Soc. Sec., No. SAG– 12– 1972, 20 13 WL 2181192, at *4 (D. Md. May 17, 20 13). The Claim ant’s RFC is an adm inistrative finding based upon the entire record, not an isolated m edical opinion. See Felton-Miller v. Astrue, 459 F. App'x 226, 230 – 31 (4th Cir. 20 11) (recognizing that RFC “is an adm inistrative assessm ent m ade by the Com m issioner based on all the relevant evidence in the case record, not a m edical opinion); See, also, SSR 96-8P, 1996 WL 374184, at *2 (S.S.A. J uly 2, 1996) (“RFC is an adm inistrative assessm ent of the extent to which an individual's m edically determ inable im pairm ent(s), including any related sym ptom s, such as pain, m ay cause physical or m ental lim itations or restrictions that m ay affect his or her capacity to do work-related 31 physical and m ental activities.”). In this case, the ALJ conducted a com prehensive analysis of the record and, based on the evidence as a whole, crafted Claim ant’s RFC finding. Therefore, the ALJ com plied with the applicable rules and regulations in determ ining Claim ant’s RFC. In addition, the ALJ provided good reasons for rejecting Dr. Spelar’s opinion regarding m issed workdays. Dr. Spelar’s opinion was in the form of a checklist. (Tr. at 293-96). He did not add any written explanation for his findings, nor did he point to any specific records as corroborative of his opinions. Furtherm ore, the reason for his belief that Claim ant would m iss one to two workdays per m onth is not obvious from the rest of his RFC assessm ent. To the contrary, a m ajority of the psychological signs and sym ptom s contained on the checklist were assessed by Dr. Spelar as being m ild or non-existent in Claim ant’s case. In addition, all of the work-related tasks that were m oderately lim ited by Claim ant’s m ental im pairm ents involved interactions with other people. The ALJ clearly accounted for that problem by lim iting Claim ant to work “in an environm ent free from team work, over-the-shoulder supervision, [and] interaction with the general public.” (Tr. at 16). Consequently, the ALJ ’s explanation for rejecting Dr. Spelar’s opinion regarding m issed workdays was both clear and reasonable. Given that substantial evidence supports the ALJ ’s rejection of Dr. Spelar’s opinion regarding m issed workdays, the ALJ did not err in disregarding the vocational expert’s testim ony based on a hypothetical question that incorporated the opinion. In order for a vocational expert's testim ony to be relevant, it m ust be in response to a proper hypothetical question that sets forth the claim ant's im pairm ents. English v. Shalala, 10 F.3d 10 80 , 10 85 (4th Cir. 1993); W alker v. Bow en, 889 F.2d 47, 50 -51 (4th Cir. 1989). To fram e a proper hypothetical question, the ALJ m ust first translate the claim ant’s physical 32 and m ental im pairm ents into a RFC that is supported by the evidence; one which adequately reflects the lim itations im posed by the claim ant’s im pairm ents. Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 20 0 6). “[I]t is the claim ant's functional capacity, not his clinical im pairm ents, that the ALJ must relate to the vocational expert.” Fisher v. Barnhart, 181 F. App’x 359, 364 (4th Cir. 20 0 6). A hypothetical question will be “unim peachable if it adequately reflects a residual functional capacity for which the ALJ had sufficient evidence.” Id. (citing Johnson v. Barnhart, 434 F.3d 650 , 659 (4th Cir. 20 0 5)) (internal quotation m arks om itted); see also Russell v. Barnhart, 58 F. App’x 25, 30 (4th Cir. 20 0 3) (noting that hypothetical question “need only reflect those im pairm ents supported by the record”). “The Com m issioner can show that the claim ant is not disabled only if the vocational expert's testim ony that jobs exist in the national econom y is in response to questions from the ALJ that accurately reflect the claim ant's work-related abilities.” Morgan v. Barnhart, 142 F. App’x 716, 720 -21 (4th Cir. 20 0 5). When the ALJ provided the vocational expert with a hypothetical question that fully and accurately reflected Claim ant’s RFC finding, the vocational expert testified that Claim ant could not do any of his past work, but could perform other jobs that existed in significant num bers in the econom y. (Tr. at 53-54). The vocational expert confirm ed that her opinions were consistent with the Dictionary of Occupational Titles. Thus, the ALJ properly relied upon this testim ony in m aking the disability determ ination. 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, the Court D EN IES Plaintiff’s m otion for judgm ent on the pleadings, GRAN TS Defendant’s 33 request that the Com m issioner’s decision be affirm ed, and D ISMISSES this action from the docket of the Court. A J udgm ent Order shall be entered accordingly. The Clerk of this Court is directed to transm it copies of this Mem orandum Opinion to counsel of record. EN TERED : May 11, 20 17 34
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