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Casto v. Colvin

United States District Court, S.D. West Virginia, Charleston Division

November 3, 2016

ALICE R. CASTO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert, United States Magistrate Judge

         This action seeks a review of the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiff's application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. The matter is assigned to the Honorable Thomas E. Johnston, United States District Judge, and was referred to the undersigned United States Magistrate Judge by standing order for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are the parties' briefs wherein they both request judgment in their favor. (ECF Nos. 14, 15).

         Having fully considered the record and the arguments of the parties, the undersigned United States Magistrate Judge respectfully RECOMMENDS that the presiding District Judge DENY Plaintiff's request for judgment on the pleadings, (ECF No. 14); GRANT Defendant's request to affirm the decision of the Commissioner, (ECF No. 15); and DISMISS this action from the docket of the Court.

         I. Procedural History

         On February 8, 2011, Plaintiff Alice R. Casto (“Claimant”) protectively filed an application for DIB, alleging a disability onset date of December 1, 2010 due to multiple endocrine neoplasia, osteopenia, hypercalcemia, GERD, depression, diabetes, blood clots, and varicose veins. (Tr. at 251-58, 325). The Social Security Administration (“SSA”) denied Claimant's application initially and upon reconsideration. (Tr. at 126-36, 138-44). Claimant subsequently filed a request for an administrative hearing. (Tr. at 145-46). An initial hearing was held on July 13, 2012 before the Honorable James P. Toschi, Administrative Law Judge (“ALJ Toschi”). (Tr. at 69-96). ALJ Toschi issued a decision determining that Claimant was not disabled as defined in the Social Security Act. (Tr. at 14). However, the Appeals Council remanded the case for further consideration due to the fact that ALJ Toschi's decision was based upon a date last insured of December 31, 2010, rather than the correct date of December 31, 2011. (Id.). Therefore, a second administrative hearing was held on April 29, 2014 before the Honorable H. Munday, Administrative Law Judge (“the ALJ”). (Tr. at 33-68). By written decision dated June 6, 2014, the ALJ likewise found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 11-32). The ALJ's decision became the final decision of the Commissioner on September 14, 2015, when the Appeals Council denied Claimant's request for review. (Tr. at 1-7).

         Claimant timely filed the present civil action seeking judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 1). The Commissioner subsequently filed an Answer opposing Claimant's complaint and a Transcript of the Administrative Proceedings. (ECF Nos. 7, 8). Thereafter, Claimant filed a Brief in Support of Judgment on the Pleadings, (ECF No. 14), and the Commissioner filed a Brief in Support of Defendant's Decision, (ECF No. 15), to which Claimant filed a reply. (ECF No. 16). Consequently, the matter is fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 54 years old on her alleged disability onset date and 55 years old on her date last insured. (Tr. at 251). She communicates in English and completed one year of college, as well as obtained a cosmetology degree. (Tr. at 324, 326). Claimant previously worked as a master instructor at a beauty school. (Tr. at 326).

         III. Summary of the ALJ's Decision

         Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Social Security Regulations establish a five-step sequential evaluation process for the adjudication of disability claims. 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. § 404.1520. The first step in the sequence is determining whether a claimant is currently engaged in substantial gainful employment. Id. § 404.1520(b). If the claimant is not, then the second step requires a determination of whether the claimant suffers from a severe impairment. Id. § 404.1520(c). If severe impairment is present, the third inquiry is whether this impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4 (the “Listing”). Id. § 404.1520(d). If the impairment does, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must determine the claimant's residual functional capacity (“RFC”), which is the measure of the claimant's ability to engage in substantial gainful activity despite the limitations of his or her impairments. Id. § 404.1520(e). After making this determination, the fourth step is to ascertain whether the claimant's impairments prevent the performance of past relevant work. Id. § 404.1520(f). If the impairments do prevent the performance of past relevant work, then the claimant has established a prima facie case of disability, and the burden shifts to the Commissioner to demonstrate, as the fifth and final step in the process, that the claimant is able to perform other forms of substantial gainful activity, when considering the claimant's remaining physical and mental capacities, age, education, and prior work experiences. 20 C.F.R. § 404.1520(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish two things: (1) that the claimant, considering his or her age, education, skills, work experience, and physical shortcomings has the capacity to perform an alternative job, and (2) that this specific job exists in significant numbers in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the SSA “must follow a special technique at every level in the administrative review, ” including the review performed by the ALJ. 20 C.F.R. § 404.1520a. First, the ALJ evaluates the claimant's pertinent signs, symptoms, and laboratory results to determine whether the claimant has a medically determinable mental impairment. Id. § 404.1520a(b). If such impairment exists, the ALJ documents his findings. Second, the ALJ rates and documents the degree of functional limitation resulting from the impairment according to criteria specified in 20 C.F.R. § 404.1520a(c). Third, after rating the degree of functional limitation from the claimant's impairment(s), the ALJ determines the severity of the limitation. A rating of “none” or “mild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decompensation) will result in a finding that the impairment is not severe unless the evidence indicates that there is more than minimal limitation in the claimant's ability to do basic work activities. Id. § 404.1520a(d)(1). Fourth, if the claimant's impairment is deemed severe, the ALJ compares the medical findings about the severe impairment and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment meets or is equal to a listed mental disorder. Id. § 404.1520a(d)(2). Finally, if the ALJ finds that the claimant has a severe mental impairment, which neither meets nor equals a listed mental disorder, the ALJ assesses the claimant's residual function. Id. § 404.1520a(d)(3).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status requirements for disability insurance benefits through December 31, 2011. (Tr. at 16, Finding No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity since December 1, 2010, her alleged disability onset date. (Id., Finding No. 2). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: “multiple endocrine neoplasia type 1 (MEN-1), history of deep vein thrombosis (DVT), and mild lumbar facet arthropathy.” (Tr. at 16-18, Finding No. 3). The ALJ considered and found non-severe Claimant's diabetes mellitus, varicose veins, osteopenia, chronic obstructive pulmonary disease (“COPD”), major depressive disorder, post-traumatic stress disorder (“PTSD”), and bipolar disorder. (Tr. at 17).

         Under the third inquiry, the ALJ found that Claimant did not have an impairment or combination of impairments that met or medically equaled any of the impairments contained in the Listing. (Tr. at 18-19, Finding No. 4). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she could perform occasional balancing, stooping, crouching and climbing of ramps and stairs, but never kneel, never crawl, and never climb ladders, ropes, or scaffolds. She could have no exposure to hazardous conditions including unprotected heights and moving machinery.

(Tr. at 19-25, Finding No. 5). At the fourth step, the ALJ found that through the date last insured, Claimant was capable of performing her past relevant work as a “master instructor/technical instructor/administrative assistant.” (Tr. at 25-26, Finding No. 6). Therefore, the ALJ found that Claimant was not disabled as defined in the Social Security Act and was not entitled to benefits. (Tr. at 27, Finding No. 7).

         IV. Claimant's Challenges to the Commissioner's Decision

         Claimant raises two challenges to the Commissioner's decision. First, Claimant contends that the ALJ's assessment of Claimant's credibility is insufficient under SSR 96-7p[1] and 20 C.F.R. § 404.1529 because the ALJ does not provide reasons for her credibility findings that are sufficiently specific to make clear the weight that the ALJ gave to Claimant's statements and the reasons for that weight. (ECF No. 14 at 13). On this point, Claimant argues that the ALJ's credibility assessment contains boilerplate language without any actual analysis of Claimant's allegations and testimony. (ECF No. 16 at 3).

         In her second challenge, Claimant asserts that the ALJ's step two finding that Claimant's mental impairments were non-severe was not based on substantial evidence as Claimant's records showed more than de minimis mental impairments that impacted her work activities. (ECF No. 14 at 14). Claimant contends that the ALJ failed to discuss or consider any of the psychologists' opinions. (Id.). Further, Claimant argues that the ALJ “cherry pick[ed]” information from the report of consultative psychologist, Cynthia Spaulding, M.A., contrary to Ms. Spaulding's overall findings and the other record evidence, including the psychological opinions and Claimant's statements. (Id. at 15). In addition, Claimant argues that to the extent that the ALJ relied on the opinions of the non-examining state agency psychologists, her reliance was misplaced because neither psychologist had the benefit of reviewing Ms. Spaulding's report and the agency consultants were operating under the assumption that Claimant's date last insured was December 31, 2010, not December 31, 2011. (ECF No. 16 at 3).

         In response to Claimant's challenges, the Commissioner maintains that Claimant has not proven that she is disabled under the Act. (ECF No. 15 at 13). Regarding the credibility assessment, the Commissioner argues that the ALJ specifically stated that she considered the factors enumerated in 20 C.F.R. § 404.1529(c) and SSR 96-7p, and she was not required to specifically discuss each factor. (ECF No. 15 at 16-17). Moreover, the Commissioner argues that the ALJ's decision demonstrates sufficient development of the record and explanation of findings to permit meaningful review. (Id. at 17). Lastly, the Commissioner argues that the ALJ's credibility determination is supported by substantial evidence, pointing to the ALJ's analysis of Claimant's lack of mental health treatment, her daily activities, and the opinion evidence. (Id. at 18-20).

         Regarding the ALJ's finding that Claimant's mental impairments were non-severe, the Commissioner identifies the fact that the ALJ applied the special technique outlined in 20 C.F.R. § 404.1520a and determined that Claimant had only “mild” restrictions in the first three functional areas and “none” in the fourth areas; thus, the Commissioner argues that the ALJ permissibly determined that Claimant does not have a severe mental impairment. (Id. at 13-14). The Commissioner also asserts that the ALJ's determination is supported by the opinions of the non-examining state agency psychologists. (Id. at 15). The Commissioner argues that Claimant's reliance on Ms. Spaulding's opinion and Claimant's own statements is unconvincing as the ALJ explained that Ms. Spaulding's opinion was inconsistent with the other evidence and Claimant's statements were not credible. (Id. at 15-16). Overall, the Commissioner argues that Claimant is asking the court to re-weigh the evidence, which is improper. (Id. at 16).

         V. Relevant Medical History

         The undersigned has reviewed all of the evidence before the Court. The medical records and opinion evidence most relevant to this PF & R are summarized as follows.

         A. Treatment Records

         On August 9, 2010, Claimant presented to the office of her primary care provider, Richard E. Cain, M.D., for a regular follow-up appointment. (Tr. at 464-65). She reported generally doing well, although she was having some gastrointestinal symptoms. (Tr. at 464). She continued to have low back pain, but her radicular left leg pain was better. Claimant had no psychiatric symptoms. Dr. Cain assessed Claimant with stable hyperlipidemia, low back pain, MEN-1 syndrome, and reflux symptoms. Dr. Cain scheduled Claimant for an endoscopy, ordered blood work and a CT scan to check the MEN-1 syndrome, and provided her with stretching exercises for her back. (Id.). A CT scan of Claimant's abdomen and pelvis taken later in August showed multiple non-obstructing kidney stones, a benign cyst of the kidney, cholelithiasis, and diffuse fatty infiltration of the liver. (Tr. at 454). Claimant also underwent a colonoscopy and esophagogastroduodenoscopy on October 13, 2010, which revealed internal hemorrhoids and a rectal polyp, but were otherwise unremarkable. (Tr. at 442).

         Claimant returned for a regularly scheduled visit with Dr. Cain on October 26, 2010. (Tr. at 462-63). Once again, Claimant reported doing well, although she was experiencing increased stress due to family health concerns. (Tr. at 462). Nonetheless, Dr. Cain felt that Claimant was psychologically stable. He assessed her with hyperlipidemia, stable reflux, stable MEN-1, and vitamin D deficiency. For Claimant's insomnia and stress, Dr. Cain decided to keep Claimant on Citalopram (brand name- Celexa). (Id.). She was instructed to return in two to three months.

         On February 22, 2011, Claimant saw Dr. Cain for regular follow-up. (Tr. at 460). She was doing “o.k.” in general, but reported hurting all over, including joint and muscle pains, and experiencing trouble at work and having to cut back on her hours. (Id.). She was stable psychologically and her review of systems and physical examination were normal. (Id.). Dr. Cain questioned if Claimant's hyperlipidemia medications were causing her muscle soreness. (Id.). Claimant was also assessed to have stable reflux, an unspecified syndrome relating to her abdomen and pelvis, myalgias, vitamin D deficiency, and low back pain. (Id.). Claimant was given prescriptions for Vicodin and Robaxin to try for her low back pain. (Id.). Dr. Cain planned to see Claimant again in two to three months. (Id.).

         On April 12, 2011, Claimant saw Dr. Cain for right ear pain and flu-like symptoms. (Tr. at 459). Her review of systems was otherwise stable, but she stated that she still had some right-sided abdominal and flank pain. (Id.). She was diagnosed with otitis and an upper respiratory infection. (Id.). Claimant was noted to be stable psychologically, but was given a referral to “Dr. Kathy Karr for depression.” (Id.).

         On April 16, 2011, Claimant pursued testing ordered by Dr. Cain relating to her complaints of headaches and left-sided abdominal pain and a history of kidney stones. A MRI of Claimant's brain was unremarkable. (Tr. at 432). A CT scan of her abdomen and pelvis showed chronic scarring and non-obstructing calcification in the inferior pole of the left kidney, a 4.2 cm right renal cyst without ...


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