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Cunningham v. Berryhill

United States District Court, S.D. West Virginia

March 31, 2017

NATHAN LAWRENCE CUNNINGHAM, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          Dwane L. Tinsley, United States Magistrate Judge

         This is an action seeking review of the final decision of the Commissioner of Social Security denying the Plaintiff's applications for child's insurance benefits and supplemental security income (SSI) under the Social Security Act. The parties consented to the undersigned United States Magistrate Judge ordering the entry of final judgement. Presently pending before this Court are Plaintiff's Brief in Support of Judgment on the Pleadings (ECF No. 11) and Defendant's Brief in Support of Defendant's Decision (ECF No. 12).

         On July 26, 2012, Nathan Lawrence Cunningham (Claimant) filed an application for child's insurance benefits alleging disability as of November 30, 2008 (Tr. at 210-222). On the alleged disability onset date, Claimant was 21 years old. He claimed disability due to bipolar disorder, attention deficit hyperactivity disorder (ADHD), depression, back pain and right leg pain (Tr. at 237). The Commissioner of Social Security (Defendant) denied Claimant's applications initially and on reconsideration. Claimant requested a hearing before an Administrative Law Judge (ALJ) on May 2, 2013. On July 23, 2014, the ALJ held a video hearing. Claimant appeared in Huntington, West Virginia, and the ALJ presided over the hearing from St. Louis, Missouri. On August 25, 2014, the ALJ issued a decision finding Claimant not disabled under the Act (Tr. at 18-28). On November 18, 2015, a Notice of Appeals Council Action informed Claimant that the Appeals Council was reviewing the ALJ's decision[1] (Tr. at 203-206). On January 14, 2016, the Appeals Council issued a Decision denying Claimant's applications for SSI and child's insurance benefits (Tr. 1-9). Thereafter, Claimant filed the instant civil action.

         Claimant's Background

         Claimant was born on December 18, 1986, and was 22 years old as of his alleged disability onset date in 2008 (Tr. at 20). Claimant went to school through eleventh grade. Claimant has no work history and receives food stamps (Tr. at 43-44). During the relevant period, Claimant lived in an apartment with his girlfriend, and two other close friends (Tr. at 592).

         Standard of Review

         Under 42 U.S.C. § 423(d)(5), a claimant for disability 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 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 "sequential evaluation" for the adjudication of disability claims. 20 C.F.R. ' 404.1520 (2015). If an individual is found "not disabled" at any step, further inquiry is unnecessary. Id. ' 404.1520(a). The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. ' 404.1520(b). If the claimant is not, the second inquiry is whether claimant suffers from a severe impairment. Id. ' 404.1520(c). If a severe impairment is present, the third inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4. Id. ' 404.1520(d). If it does, the claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the claimant's impairments prevent the performance of past relevant work. Id. ' 404.1520(e). By satisfying inquiry four, the claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant is able to perform other forms of substantial gainful activity, considering claimant's remaining physical and mental capacities and claimant's age, education and prior work experience. 20 C.F.R. ' 404.1520(f) (2015). The Commissioner must show two things: (1) that the claimant, considering claimant's age, education, work experience, skills and physical shortcomings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         Appeals Council

         The scope of review of the Appeals Council is limited. The Appeals Council (AC) will consider all the evidence of the hearing before Administrative Law Judge as well as any new and material evidence submitted which relates to the period on or before the date of the hearing decision of the ALJ. After reviewing all the evidence in the hearing record and any additional evidence received, the Appeals Council may affirm, modify or reverse the hearing decision. If the Appeals Council issues its own decision, it will base its decision on the preponderance of the evidence. The Appeals Council's decision is binding unless the claimant or another party files an action in federal district court, or the decision is revised. Richard C. Ruskell, Social Security Disability Claims Handbook, 2016 Edition.

         Sequential Evaluation

         In this particular case, the ALJ determined that Claimant has not engaged in substantial gainful activity since November 30, 2008, the alleged onset date (Tr. at 20). The ALJ found that Claimant has the severe impairments of obesity, intellectual disability, attention deficit hyperactivity disorder, fracture of the lower limb and degenerative disc disease. (Id.) Under the second step, the ALJ found that Claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. The ALJ found that Claimant has the residual functional capacity to perform light work limited to unskilled, simple, routine, repetitive tasks with simple instructions, no high production demands, no interaction with the public and only minimal or indirect contact with others (Tr. at 23). Transferability of job skills is not material to the determination of disability in this case because Claimant has no past relevant work (Tr. at 26). The ALJ held that “there are jobs that exist in significant numbers in the national economy that the claimant can perform.” (Id.) Claimant could perform positions of produce weigher, backer racker, garment bagger, grader/sorter, bench worker and motor polarizer (Tr. at 27). Upon this basis, the ALJ denied Claimant's applications for child's insurance benefits and supplemental security income.

         Following Claimant's request for review, the Appeals Council issued a Decision of the Appeals Council (Tr. at 4-7). The Appeals Council (AC) held that it agrees with the ALJ's findings under step 1 of the sequential evaluation that Claimant has not engaged in substantial gainful activity since November 30, 2008. The AC did not agree with the ALJ's finding at step 2 of the sequential evaluation. The AC found that the ALJ's conclusion that Claimant has a severe impairment of intellectual disability “is not consistent with the longitudinal record” (Tr. at 4). The AC stated:

The evidence of record does not contain any diagnosis of intellectual disability from an acceptable medical source nor does it contain any IQ scores that fall below 70. The evidence of record indicates that the claimant was in special education. However, the special education placement was not a result of intellectual disability. The special education placement was due to behavioral issues and reading comprehension (Exhibit 4F/ page 10). In 2000, the claimant underwent psychological testing and achieved a Full Scale IQ of 90 and a Performance score of 102 (Exhibit 4F/ page 3) and the claimant was diagnosed with borderline intellectual functioning in 2001 (Exhibit 3F/ page 6).
The hearing decision does not indicate that there is any evidence that the claimant experienced intellectual delays or deficits of adaptive function during the developmental period (prior to age 22). Specifically, there is no evidence that supports subaverage functioning before the age of 22, as required by Listing 12.05. The claimant did not demonstrate deficits initially manifested during the development period, which is a threshold requirement for a finding [of] intellectual disability. The finding that the claimant did not exhibit deficits in adaptive functioning during the developmental period is supported by substantial evidence. Education records also indicate that the claimant completed welding vocational training in 2003. (Tr. at 4-5).

         The AC held that the ALJ's decision includes “an adequate evaluation” of Claimant's other severe impairments (Tr. at 5). The AC adopted the ALJ's decisions findings with regard to consideration of Claimant's obesity, attention deficit hyperactivity disorder, fracture of the lower limb and degenerative disc disease under the required Listings. (Id.) Although the AC found these impairments severe, the AC did not find that one of these impairments or a combination of these meet or medically equal the severity of the Listings in 20 CFR Part 404, Subpart P, Appendix 1. The AC found that Claimant's attention deficit hyperactivity disorder causes mild limitations in activities of daily living, mild limitations in social functioning, moderate limitations in concentration, persistence or pace and no episodes of decompensation of extended duration. Furthermore, the AC agreed with the ALJ's decision findings under steps 3, 4 and 5. In conclusion, the AC decision denied Claimant's applications for Supplemental Security Income or child's insurance benefits (Tr. at 6).

         Scope of Review

         The sole issue before this court is whether the final decision of the Commissioner denying the claim is supported by substantial evidence. In Blalock v. Richardson, substantial evidence was defined as:

Evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'

Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). Additionally, the Commissioner, not the court, is charged with resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Nevertheless, the courts Amust not abdicate their traditional functions; they cannot escape their duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.@ Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

         A careful review of the record reveals the decision of the Commissioner is supported by substantial evidence.

         The Medical Record

         On November 5, 2012, Rakesh Wahi, M.D., conducted a consultative examination (Tr. 516). Claimant told Dr. Wahi that he was unable to work because of difficulty concentrating, and complained that he was unable to focus to finish a task (Id.) He also reported that nine-years prior he was in a motor vehicle accident and experienced back pain ever since. He was able to dress himself and shower, and denied any sexual dysfunction. He reported prior surgery on his right ankle, and claimed that since his right ankle surgery he cannot fully move his ankle, use stairs, or walk more than 100 yards (Tr. at 517). During the examination, Claimant was alert, fully oriented, and cooperative (Tr. at 518). His cranial nerves were normal, and he limped slightly on his right leg (Tr. at 519). He was able to get on and off an examination table without difficulty, he was unable to walk on his heels and toes, but he maintained normal sensation and normal reflexes. (Id.) He complained of back pain with movement in his right shoulder. His straight leg raising test was positive at 70 or 80 degrees. (Id.)

         Dr. Wahi concluded that Claimant's “symptoms of ADHD. . . prevent him from holding a job and interacting normally with people around him” (Tr. at 519). Dr. Wahi also concluded that Claimant's lumbar spine degenerative disc disease prevented him from carrying anything heavier than ten pounds, but also concluded that Claimant could carry out his activities of daily living, “but is not able to lift anything heavy.” (Id.)

         On November 8, 2012, Uma Reddy, M.D., a state agency physician, completed a physical residual functional capacity (RFC) assessment (Tr. at 81-83). She found that Claimant could lift up to 50 pounds occasionally, and 25 pounds frequently, and could stand, walk or sit for up to six hours in an eight-hour work day. (Id.)

         On November 28, 2012, William C. Steinhoff, M.A., conducted a consultative psychological examination (Tr. at 520-526). He noted that Claimant's hair was unkempt and his eyes were bloodshot, but he was dressed appropriately, his posture and gait were normal and his psychomotor behavior was unremarkable (Tr. at 520). He was cooperative, arrived on time, and was driven by his girlfriend. (Id.) At the time, he was not receiving psychological counseling (Tr. at 522). Upon examination, his speech was slow but clear and coherent, he was fully oriented and depressed, his thought process was slow but coherent, and he had no bizarre thought content (Tr. at 522-523). Mr. Steinhoff reported that Claimant displayed: mildly impaired immediate memory; markedly impaired recent memory; and normal remote memory (Tr. at 523). His concentration was moderately impaired and his general fund of knowledge was adequate. His pace was slow and his persistence was moderately impaired, but his social functioning was only mildly impaired. (Id.) He reported maintaining daily activities, such as contributing to household chores and yardwork, he used a computer, and liked to “tinker with them and take them apart and put them back together.” (Id.) His IQ scores ranged from 74 to 83, falling in the low average range (Tr. at 524).

         On December 28, 2012, Joseph A. Shaver, Ph.D., a state agency psychologist, completed a psychiatric review technique and a mental RFC assessment (Tr. at 67-69, 71-73). He found that Claimant was either not significantly limited, or moderately limited in a variety of workplace activities related to social functioning, understanding and memory, adaptation and sustained concentration and persistence (Tr. at 71-72). Dr. Shaver specifically considered Mr. Steinhoff's opinion and findings, and noted that Mr. Steinhoff's evaluation reflected only a mild impairment in social functioning (Tr. at 73). Dr. Shaver opined that Claimant maintained the ability to perform work with only two-to-three step operations, limited social interaction, and minimal production quotas. (Id.)

         On April 1, 2013, Dominic Gaziano, M.D., a state agency physician, completed a physical RFC assessment, confirming Dr. Reddy's prior findings (Tr. at 96-98). On April 2, 2013, Holly Cloonan, Ph.D., another state agency psychologist, also completed a psychiatric review technique and a mental RFC assessment (Tr. at 93-95, 97-99). She too found Claimant capable of performing a limited range of simple work, opining that Claimant was able to learn, recall and perform routine work-like activities involving simple instructions in settings that do not require meeting production line schedules or interacting more than than occasionally or superficially with other.

         Claimant's Challenges to the Commissioner's Decision

         Claimant asserts that the ALJ's decision is not supported by substantial evidence. Claimant argues that the ALJ failed to properly consider the medical evidence of record and the opinions of the consulting and examining sources regarding Claimant's mental and physical impairments. Claimant asserts that the ALJ failed to incorporate the consulting and examining sources' opinions into the credibility determination and the residual functional capacity (RFC) assessment (ECF No. 11).

         Defendant asserts that substantial evidence supports the ALJ's decision to award lesser weight to a consultative examiner's finding that Claimant's back condition limited him to lifting only 10 pounds. Defendant argues that the consultative examiner's findings were contradicted by State agency physician opinions. Defendant avers that medical imaging showed very minimal degenerative disc disease. Defendant asserts that Claimant's received minimal conservative treatment after aggravating his back riding an ATV, moving furniture and carrying a television downstairs (ECF No. 12). Additionally, Defendant avers that substantial evidence supports the ALJ's finding that Claimant can perform a range of unskilled work with no interaction with the public and minimal interaction with others when Claimant “went a decade without mental health treatment, received only sporadic conservative treatment and a consultative examiner found he had a mild social impairment. (Id.)

         Discussion

         The Appeals Council's decision is the final decision of the Commissioner. When the Appeals council considers a claimant's appeal and enters a decision - as is the case here - “it is the Appeals Council[‘s] decision which constitutes the Commissioner's final decision for purposes of judicial review under 42 USC § 405(g)” see 20 CFR §§ 404.979, 404.981. When the Appeals Council adopts an ALJ's opinion with modifications, the district court reviews “the decision of the ALJ as modified by the Appeals Council.” See Arbogast v. Bowen, 860 F.2d 1400, 1402 (7th Cir. 1988).

         Claimant does not address the Appeals Council's decision (ECF No. 11).[2] Claimant states that the Appeals Council denied Claimant's request for review of the ALJ's decision, when in fact, the Appeals Council issued a decision. On January 14, 2016, a Notice of Appeals Council Decision stated “The enclosed decision is the final decision of the Commissioner of Social Security in your case” (Tr. at 1). The Appeals Council's Decision was attached to the Notice (Tr. at 4-9). Claimant's focus on the ALJ's decision, which is not the Commissioner's final decision, is enough for this Court to affirm the Appeals Council's decision. However, in an abundance of caution, this Court will address Claimant's arguments nonetheless. See Smith v. Colvin, Case No. 1:14-cv-01147-JMS-DKL (Southern District of Indiana Indianapolis Division May 15, 2015).

         The AC decision differs noticably from the ALJ's decision in two areas. First, unlike the ALJ, in the second step of the sequential evaluation the AC did not find that Claimant suffers from the severe impairment of intellectual disability. Second, the AC's evaluation of Claimant's mental impairments, singly and in combination, to determine whether “paragraph B” criteria are met differs from the ALJ's evaluation of the same.

         The AC found that Claimant's attention deficit hyperactivity disorder causes mild limitations in activities of daily living; mild limitations in social functioning; moderate limitations in concentration, persistence or pace; and no episodes of decompensation of extended duration (Tr. at 5). The ALJ held that Claimant experienced mild limitations in activities of daily living; moderate limitations in social functioning; moderate limitations in concentration, persistence or pace; and no episodes of decompensation of extended duration (Tr. at 21).

         Claimant argues that the ALJ failed to reasonably justify why he gave Dr. Wahi's opinion “limited weight” (ECF No. 11). Beyond Claimant's self-reported symptoms, the ALJ found that Dr. Wahi's notes reflected that Claimant exhibited a slight limp with the right leg but that Claimant had no difficulties getting on and off the examination table (Tr. at 24). Dr. Wahi reported that Claimant could partially squat but could not walk on his heels or toes. Claimant's sensation in his upper and lower extremities remained intact. Dr. Wahi reported that Claimant's range of motion in the shoulders, elbows, wrists, hips, knees and left ankle remained normal. Although Dr. Wahi did suggest Claimant be limited to lifting 10 pounds, Dr. Wahi noted that Claimant was unable to “lift anything heavy.” Dr. Wahi found that Claimant was able to perform his activities of daily living. The ALJ stated:

Given the remote nature of this evaluation in comparison to more recent provided evidence, including lack of ongoing treatment and improvement with his condition with more recent imaging, the limitation to 10 pounds lifting does not appear to be well-founded. Likewise, the restriction was addressed as a self-imposed limit identified by the claimant during the evaluation and inconsistent with the subsequent note of restrictions from lifting “heavy” objects. Dr. Wahi's opinion thus, has limited weight (Tr. at 24-25).

         Further, Claimant asserts that the ALJ failed to state what weight he attributed to Dr. Steinhoff's opinion. The ALJ discussed the psychiatric consultative examination by Dr. Steinhoff (Tr. at 25). The ALJ noted Claimant's IQ testing scores ranging from 74 to 83 with a full scale IQ of 75. The ALJ stated that Claimant performed his own personal care, occasionally washed dishes, did some help with yard work at times, watched television, listened to music and tinkered with computers. The ALJ noted that Dr. Steinhoff's examination notes indicated that Claimant experienced depressed mood, flat affect, slowed cohered thought process, limited insight and average judgment. Dr. Steinhoff found Claimant had mild impairment in immediate memory and marked impairment in recent and normal remote memory. The ALJ held that Dr. Steinhoff reported that Claimant had some difficulties with focus and following instructions, and moderate limitations with concentration. Mr. Steinhoff diagnosed Claimant with slow pace, moderately impaired persistence, depression, bipolar disorder, social phobia and post-traumatic stress disorder (Tr. at 520-526). The Adult Mental Profile conducted on November 28, 2012, by Mr. Steinhoff, reflects that Claimant reported that he “gets on the computer some” and that he “likes to tinker with them and take them apart and put them back together” (Tr. at 523).

         The ALJ noted that Claimant developed a plan with his clinician to obtain his GED and get a job to support himself since his girlfriend moved out of their apartment. (Id.) The ALJ pointed out that Claimant received very limited mental health treatment. Claimant reported fixing his own food, doing some household activities, spending time with his girlfriend and her family, handling his finances and shopping. Therefore, the ALJ found that few limitations in activities of daily living were supported. The ALJ held that “Limitations in the claimant's ability to socialize were founded by his issues with anger issues” (Tr. at 25).

         Claimant asserts that Dr. Wahi's opinion regarding Claimant's alleged severe mental limitations is supported by the findings of Mr. Steinhoff (ECF No. 11). The AC found that Claimant does not have a severe impairment of intellectual disability (Tr. at 4-5). The AC held that the evidence of record does not contain a diagnosis of intellectual disability “from an acceptable medical source” (Tr. at 5). Further, the AC held that the evidence of record does not contain any IQ scores by Claimant that fall below 70. (Id.) The AC clarified that although Claimant was placed in special education, it was not a result of intellectual disability. Instead, Claimant's special education placement was due to behavioral issues and reading comprehension. The AC found that the record lacked any evidence that Claimant experienced intellectual delays or deficits of adaptive functioning during the development period when Claimant had not yet reached the age of 22 years old. The AC held that Claimant did not exhibit any of the intellectual disabilities threshold deficits in adaptive functioning. (Id.) Additionally, the AC pointed out that “Education records also indicate that the claimant completed a welding vocational training.” Therefore, Claimant has failed to demonstrate that the ALJ's determination to grant limited weight to the opinion of Dr.Wahi and to not give significant weight to the opinion of Mr. Steinhoff is not supported by the substantial evidence of the record.

         In discussing the finding that Claimant did not have an impairment or combination of impairments that met a Listing, the ALJ held:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision. (Tr. at 23).

         The medical records reflect that Claimant received conservative treatment for his back and aggravated his back when he moved furniture and fell down the stairs, rode an ATV and carried a television on stairs. X-rays were taken of Claimant's back following a motor vehicle accident (Tr. at 487). The back x-ray was unremarkable, showing adequately maintained vertebral bodies and disc spaces (Tr. at 503). There was no spondylosis or spondylolisthesis, no fracture and no destructive process. (Id.) In April 2011, Claimant had another lumbar x-ray and a thoracic x-ray. Both x-rays were unremarkable (Tr. at 507-508). Although Claimant returned to the ER a number of times between May 2011 to September 2012, the accidents or illnesses were unrelated to his back condition or prior ankle fracture.

         On January 21, 2014, Claimant presented to the ER after he slipped on ice and twisted his left ankle, however, he did not report any neck pain (Tr. at 690-691). X-rays of Claimant's ankle were normal and had no sign of acute sensorimotor deficit. In March 2014, Claimant returned to the ER with complaints of neck and back pain after an ATV accident where he hit a pole (Tr. at 567-568). A CT scan of his spine and head showed nothing acute (Tr. at 565). Claimant was diagnosed with lumbar strain and instructed to ice it that day then return to activity as tolerated (Tr. at 558). In April 2014, Claimant returned to the ER complaining of chronic back pain (Tr. at 553). Claimant was instructed to follow-up with his primary physician. On July 14, 2014, images of Claimant's lumbar spine showed mild disc space narrowing at ¶ 4-L5, minimal spurring at ¶ 3-L4, and L4-L5, and minimal physiologic anterior wedging (Tr. at 672). The overall impression of the image was “[v]ery minimal degenerative changes at ¶ 3-L4 and L4-L5” (Tr. at 671).

         Listing 1.02

         Listing 1.02 Major Dysfunction of a Joint: Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable ...


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