United States District Court, S.D. West Virginia, Huntington Division
A. Eifert United States Magistrate Judge.
an action seeking review of the decision of the Commissioner
of the Social Security Administration (hereinafter the
“Commissioner”) denying Plaintiff's
application for supplemental security income
(“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' motions for
judgment 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 Judge. (ECF Nos.
5, 8). The Court has fully considered the evidence and the
arguments of counsel. For the reasons that follow, the Court
FINDS that the decision of the Commissioner
is supported by substantial evidence and should be affirmed.
Joseph Anthony McClure (“Claimant”) completed an
application for SSI on September 27, 2012, alleging a
disability onset date of January 1, 2009,  due to
“bipolar [and] manic depressive.” (Tr. at 27-28,
148, 166). The Social Security Administration
(“SSA”) denied Claimant's application
initially and upon reconsideration. (Tr. at 10, 81, 91). On
September 20, 2013, Claimant filed a written request for an
administrative hearing, which was held on October 29, 2014
before the Honorable Sabrina M. Tilley, Administrative Law
Judge (“ALJ”). (Tr. at 24-56). By decision dated
December 12, 2014, the ALJ determined that Claimant was not
entitled to benefits. (Tr. at 10-20). The ALJ's decision
became the final decision of the Commissioner on May 26,
2016, when the Appeals Council denied Claimant's request
for review. (Tr. at 1-3).
27, 2016, Claimant brought the present civil action seeking
judicial review of the administrative decision pursuant to 42
U.S.C. § 405(g). (ECF No. 2). The Commissioner filed her
Answer and a Transcript of the Proceedings on September 22,
2016. (ECF Nos. 9, 10). Thereafter, the parties filed their
briefs in support of judgment on the pleadings. Therefore,
this matter is ripe for resolution.
was 31 years old at the time of his alleged onset of
disability and 33 years old at the time of the administrative
hearings. (Tr. at 10). He has a GED and is able to
communicate in English. (Tr. at 165, 167). Claimant
previously worked as a sales clerk, cashier/stocker, driver,
and laborer. (Tr. at 167).
Summary of ALJ's Findings
42 U.S.C. § 423(d)(5), a claimant seeking disability
benefits has the burden of proving disability, 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 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. § 416.920. The first step
in the sequence is determining whether a claimant is
currently engaged in substantial gainful employment.
Id. § 416.920(b). If the claimant is not, then
the second step requires a determination of whether the
claimant suffers from a severe impairment. Id.
§ 416.920(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.
Id. § 416.920(d). If the impairment does, then
the claimant is found disabled and awarded benefits.
if the impairment does not, 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. § 416.920(e). After making this
determination, the next step is to ascertain whether the
claimant's impairments prevent the performance of past
relevant work. Id. § 416.920(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
establish, as the 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. Id. § 416.920(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).
claimant alleges a mental impairment, the SSA “must
follow a special technique at every level in the
administrative review.” 20 C.F.R. § 416.920a.
First, the SSA evaluates the claimant's pertinent signs,
symptoms, and laboratory results to determine whether the
claimant has a medically determinable mental impairment. If
such impairment exists, the SSA documents its findings.
Second, the SSA rates and documents the degree of functional
limitation resulting from the impairment according to
criteria specified in 20 C.F.R. § 416.920a(c). Third,
after rating the degree of functional limitation from the
claimant's impairment(s), the SSA 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. 20 C.F.R.
§ 416.920a(d)(1). Fourth, if the claimant's
impairment is deemed severe, the SSA 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. 20
C.F.R. § 416.920a(d)(2). Finally, if the SSA finds that
the claimant has a severe mental impairment, which neither
meets nor equals a listed mental disorder, the SSA assesses
the claimant's residual function. 20 C.F.R. §
case, the ALJ determined that Claimant satisfied the first
inquiry because he had not engaged in substantial gainful
activity since September 14, 2012. (Tr. at 12, Finding No.
1). Under the second inquiry, the ALJ found that Claimant
suffered from the severe impairments of mood disorder and
anxiety disorder. (Tr. at 12-13, Finding No. 2). The ALJ also
considered Claimant's history of polysubstance abuse,
bipolar disorder, and chronic back strain; however, she found
that these impairments were non-severe. (Id.).
third inquiry, the ALJ concluded that Claimant's
impairments, either individually or in combination, did not
meet or equal the level of severity of any impairment
contained in the Listing. (Tr. at 14-15, Finding No. 3).
Consequently, the ALJ determined that Claimant possessed the
[P]erform a full range of work at all exertional levels, but
the following nonexertional limitations: the claimant can
understand, remember, and carry out simple and complex tasks.
He can respond appropriately to occasional interaction with
coworkers and supervisors. The claimant can adjust to changes
in a work routine in an environment free from teamwork,
over-the-shoulder supervision, interaction with the general
public, and fast-paced production requirements.
(Tr. at 15-18, Finding No. 4). The ALJ found that the
Claimant had no past relevant work. (Tr. at 18-19, Finding
No. 5). Accordingly, under the fifth and final inquiry, the
ALJ reviewed Claimant's prior work experience, age, and
education in combination with his RFC to determine if he
would be able to engage in substantial gainful activity. (Tr.
at 19-20, Finding Nos. 6-9). The ALJ considered that (1)
Claimant 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 communicate in
English; and (3) transferability of job skills was not an
issue because the Claimant did not have past relevant work.
(Tr. at 19, Finding Nos. 6-8). Given these factors,
Claimant's RFC, and the testimony of a vocational expert,
the ALJ determined that Claimant could perform jobs that
existed in significant numbers in the national economy. (Tr.
at 19-20, Finding No. 9). At the medium exertional level,
Claimant could work as a janitor, cleaner, or stock clerk; at
the light exertional level, Claimant could work as a janitor,
assembler, or price marker; and at the sedentary exertional
level, Claimant could work as a surveillance system monitor,
assembler, or electronic worker. (Id.). Therefore,
the ALJ concluded that Claimant had not been disabled as
defined by the Social Security Act from September 14, 2012,
through the date of the ALJ's decision. (Tr. at 20,
Finding No. 10).
Claimant's Challenges to the Commissioner's
raises three challenges to the Commissioner's decision.
First, he claims that the ALJ erred at step two of the
sequential process when she determined that Claimant's
chronic back strain was a non-severe impairment. (ECF No. 11
at 4). Claimant relies on the consultative examination
performed by Dr. Kip Beard, who found that Claimant had
“some discomfort on bending forward with paravertebral
tenderness.” He argues that this objective finding,
combined with Claimant's subjective complaints of back
pain, merit a finding that his chronic back strain is severe.
(Id. at 5).
Claimant asserts that the ALJ failed to properly consider the
opinion of his treating psychiatrist, Marc Spelar, M.D.
(Id. at 5-6). In particular, Claimant alleges that
the ALJ should have adopted Dr. Spelar's opinion that
Claimant would miss one to two days of work each month due to
his psychological impairments. The ALJ gave significant
weight to some of Dr. Spelar's function-by-function
assessments, but rejected his opinion regarding missed
workdays on the basis that the opinion was not supported by
any evidence or rationale. Claimant accuses the ALJ of
cherry-picking from Dr. Spelar's RFC assessment.
in a related challenge, Claimant posits that the ALJ failed
to properly consider the opinion of the vocational expert,
who testified that Claimant would be precluded from gainful
employment if he missed one to two days of work each month.
Claimant 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, Claimant would have been found disabled based on
the vocational expert's testimony.
response, the Commissioner argues that the ALJ's step two
determination was correct, because Claimant's physical
findings at Dr. Beard's examination did not demonstrate a
severe back strain. (ECF No. 12 at 9-11). The Commissioner
emphasizes that, to the contrary, Claimant was able to walk,
sit, stand, and squat without difficulty, and his muscle
strength and sensation were normal. While Dr. Beard noted
some back tenderness on bending, he also confirmed the
absence of spasm and a preserved range of motion.
respect to Dr. Spelar's opinion, the Commissioner noted
that the ALJ was not required to adopt the opinion in
toto. (Id. at 11). In fact, the ALJ gave great
weight to much of Dr. Spelar's RFC assessment,
scrutinizing each aspect of it and reconciling any
discrepancies. The Commissioner adds that the ALJ properly
declined to give controlling weight to Dr. Spelar's
opinion on missed workdays because the opinion was not
consistent with other substantial evidence. In the
Commissioner's view, the ALJ provided good reasons for
rejecting that opinion and good reasons for adopting other
portions of Dr. Spelar's RFC assessment. The Commissioner
maintains that the reasons were supported by substantial
evidence. Accordingly, the ALJ fully complied with agency
Commissioner further claims that the ALJ's acted
appropriately in disregarding testimony by the vocational
expert that was based upon Dr. Spelar's unsubstantiated
opinion regarding Claimant's potential to miss workdays.
The Commissioner indicates that this challenge is derivative
of Claimant's position regarding Dr. Spelar, which has no
merit. Consequently, this challenge is likewise unavailing.
Relevant Medical Records
Court has reviewed the transcript of proceedings in its
entirety including the medical records in evidence, but has
confined its summary of Claimant's treatment records and
evaluations to those entries most relevant to the issues in
February 29, 2012, Claimant presented to Prestera Centers for
Mental Health (“Prestera”), with complaints of
depression and anxiety as evidenced by his blunted
expression, minimal eye contact, and lack of motivation. (Tr.
at 253-56). Claimant also reported problems sleeping.
Claimant had been examined by Dr. Kazi, a psychiatrist at
Prestera, the week prior; however, he had refused medication
recommended by Dr. Kazi on the basis that medication had
never helped him in the past. Claimant 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
home with his mother and isolated himself from others.
Claimant reported being easily agitated, going for days
without sleep and rarely leaving his home. Claimant had no
history of psychiatric hospitalization, substance abuse
counseling, or intensive outpatient counseling, but he had
sought occasional counseling from Prestera in the past.
examination, Claimant exhibited social isolation, blocked
speech, deficient coping skills, and a blunted affect. (Tr.
at 274-80). His thought content was within normal limits; he
was oriented in all spheres; and his recall memory was within
normal limits. Claimant was diagnosed with mood disorder, not
otherwise specified (“NOS”), and polysubstance
dependency, episodic. He received a Global Assessment of
Functioning (“GAF”) score of 60. Claimant agreed
to participate in talk therapy and possibly reconsider his
refusal to take medication.
therapy session on March 14, 2012, Claimant told Ms. Arrell
he had been involved in a car accident in 2001 and sustained
a back injury. (Tr. at 257). This “messed up” his
back resulting in an inability to lift anything; in addition,
he became nervous when he rode in a car with anyone. Claimant
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 home. The business
closed a few months later, so Claimant was out of work.
Claimant spoke about applying for disability; however, he was
not motivated enough to obtain information necessary to
complete the paperwork.
attended therapy at Prestera six more times in 2012: March
28, June 6, June 20, October 10, October 24, and December 5.
(Tr. at 258-63). He also canceled, or had canceled, ten
additional appointments. (Tr.at 283-92). Claimant regularly
expressed anger and depression at his therapy sessions. On
March 28, Claimant was angry with his girlfriend when he
learned that she had miscarried their baby and never told
him. He was also frustrated about not being able to get a
job. On June 6, Claimant told Ms. Arrell that his mother had
to complete his disability application for him, because he
was not motivated to finish it. (Tr. at 259). Claimant
described his day as waking, showering, and then either going
back to bed or sitting and listening sat to music. He did not
want to be around people and did not like television. He
blamed his depression on living in West Virginia, stating
that people were friendlier in Florida. The topic of
medication was raised; however, Claimant continued to refuse
it as he did not like to feel “knocked out” all
20, Claimant appeared to be depressed with symptoms of
anhedonia and lack of motivation. (Tr. at 260). Claimant told
Ms. Arrell that he wanted to find work, but was in constant
pain due to past accidents. Claimant continued to refuse
medication, stating marijuana would help him function better.
By October 10, Claimant reported he had been denied
disability and had retained an attorney who suggested
Claimant begin taking medication; however, Claimant was not
willing to do so. (Tr. at 261). Claimant discussed his
distrust of medication, his self-imposed isolation, and his
lack of sleep. Claimant was fully oriented, demonstrating
normal thought content; however, he appeared socially