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McClure v. Berryhill

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

May 11, 2017

JOSEPH ANTHONY MCCLURE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1]Defendant.

          MEMORANDUM OPINION

          Cheryl A. Eifert United States Magistrate Judge.

         This is 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.

         I. Procedural History

         Plaintiff Joseph Anthony McClure (“Claimant”) completed an application for SSI on September 27, 2012, alleging a disability onset date of January 1, 2009, [2] 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).

         On July 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.

         II. Claimant's Background

         Claimant 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).

         III. Summary of ALJ's Findings

         Under 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.

         However, 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).

         When a 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. § 416.920a(d)(3).

         In this 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.).

         At the 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 RFC to:

[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).

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

         Claimant 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).

         Second, 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.

         Finally, 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.

         In 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.

         With 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 standards.

         The 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.

         V. Relevant Medical Records

         The 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 dispute.

         A. Treatment Records

         On 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.

         On 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.[3] Claimant agreed to participate in talk therapy and possibly reconsider his refusal to take medication.

         At his 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.

         Claimant 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 the time.

         On June 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 ...


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