United States District Court, S.D. West Virginia, Charleston Division
ALICE R. CASTO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert, United States Magistrate Judge
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).
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.
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).
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.
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).
Summary of the ALJ's Decision
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).
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.
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.
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).
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).
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).
Claimant's Challenges to the Commissioner's
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 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).
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).
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
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).
Relevant Medical History
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.
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).
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.
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.).
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.).
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 ...