United States District Court, S.D. West Virginia, Huntington Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert Magistrate Judge.
action seeks a review of the decision of the Commissioner of
the Social Security Administration (hereinafter
“Commissioner”) denying Plaintiff's
application for supplemental security income
(“SSI”) under Titles XVI of the Social Security
Act, 42 U.S.C. §§ 1381-1383f. The matter is
assigned to the Honorable Robert C. Chambers, 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' cross motions for
judgment on the pleadings, as articulated in their briefs.
(ECF Nos. 13, 16).
fully considered the record and the arguments of the parties,
the undersigned respectfully RECOMMENDS that
the presiding District Judge DENY
Plaintiff's Motion for Judgment on the Pleadings, (ECF
No. 13); GRANT Defendant's request to
affirm the Commissioner's decision, (ECF No. 16); and
DISMISS this action from the docket of the
March 17, 2014, Plaintiff Victoria Ann Shank
(“Claimant”), completed an application for SSI,
alleging a disability onset date of September 1, 2008 due to
attention deficit disorder, bipolar disorder, and manic
depressive disorder. (Tr. at 181, 198). The Social Security
Administration (“SSA”) denied Claimant's
application initially and upon reconsideration. (Tr. at 12).
Claimant filed a request for an administrative hearing, which
was held on June 15, 2015 before the Honorable Robert M.
Butler, Administrative Law Judge (“ALJ”). (Tr. at
27-74). By written decision dated September 8, 2015, the ALJ
found that Claimant was not disabled as defined in the Social
Security Act. (Tr. at 12-22). The ALJ's decision became
the final decision of the Commissioner on November 15, 2016,
when the Appeals Council denied Claimant's request for
review. (Tr. at 1-4).
timely filed the present civil action seeking judicial review
of the ALJ's decision 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
Proceedings. (ECF Nos.5, 6). Claimant then filed a Brief in
Support of Judgment on the Pleadings. (ECF No. 13). In
response, the Commissioner filed a Brief in Support of
Defendant's Decision to which Claimant filed a Reply.
(ECF Nos. 16, 17). Consequently, the matter is fully briefed
and ready for resolution.
was 15 years old at the time of her alleged onset of
disability and 22 years old at the time of the ALJ's
decision. (Tr. at 194). She has a tenth grade education and
communicates in English. (Tr. at 197, 199). Claimant has
never been employed; therefore, she has no past relevant
work. (Tr. at 198).
Summary of ALJ's Decision
claimant seeking disability benefits has the burden of
proving a disability. See Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972). For purposes of SSI, a
disability is defined as the inability “to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. § 1382c(a)(3)(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. § 416.920(a)(4). The
first step in the sequence is determining whether a claimant
is currently engaged in substantial gainful activity.
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). A severe impairment is one that
“significantly limits [a claimant's] physical or
mental ability to do basic work activities.”
Id. 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 Part 404 of
the Administrative Regulations (the “Listing”).
Id. § 416.920(d). If so, then the claimant is
found disabled and awarded benefits.
if the impairment does not meet or equal a listed impairment,
the adjudicator must assess 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 fourth 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
demonstrate, in the fifth and final step of the process, that
the claimant is able to perform other forms of substantial
gainful activity, given the claimant's remaining physical
and mental capacities, age, education, and prior work
experience. 20 C.F.R. § 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.
at the first step of the sequential evaluation, the ALJ
confirmed that Claimant had not engaged in substantial
gainful activity since the date of Claimant's SSI
application. (Tr. at 14, Finding No. 1). At the second step
of the evaluation, the ALJ found that Claimant had the
following severe impairments: “bipolar disorder,
generalized anxiety disorder, attention deficit hyperactivity
disorder, and personality disorder.” (Tr. at 14-15,
Finding No. 2). As for 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 15-16, Finding
No. 3). Accordingly, the ALJ determined that Claimant
[T]he residual functional capacity to perform medium work as
defined in 20 CFR 416.967(c) except the claimant is limited
to simple, routine and repetitive tasks in an environment
free of fast paced production requirements, involving only
simple work related decisions and routine workplace changes
with no interaction with the general public and only
occasional interaction with coworkers.
(Tr. at 17-20, Finding No. 4).
fourth step, the ALJ determined that Claimant had no past
relevant work. (Tr. at 20, Finding No. 5). Therefore, under
the fifth and final inquiry, the ALJ assessed Claimant's
age and education in combination with her RFC to determine
her ability to engage in substantial gainful activity. (Tr.
at 20-21, Finding Nos. 6-9). The ALJ noted that (1) Claimant
was born in 1993 and was defined as a younger individual on
the date the application was filed; (2) she had a limited
education and could communicate in English; and (3)
transferability of job skills was not material to the
disability determination because Claimant had no prior
relevant work. (Id., Finding Nos. 6-8). Considering
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, including unskilled work as a sorter, store
laborer, price marker, and packager tagger. (Tr. at 21,
Finding No. 9). Therefore, the ALJ found that Claimant was
not disabled. (Tr. at 22, Finding No. 10).
Claimant's Challenge to the Commissioner's
raises two challenges to the Commissioner's decision.
First, she contends that the ALJ erred in evaluating her
credibility. (ECF No. 13 at 10-15). In particular, Claimant
alleges that the ALJ relied only on the objective medical
evidence when finding Claimant to be less than fully credible
despite legal precedent requiring the ALJ to consider all of
the evidence. (Id. at 13-15). According to Claimant,
the ALJ “parsed the medical evidence” prepared
after the date of the application, highlighting clinical
notes that showed “slight improvement in
symptoms” while “barely” mentioning
Claimant's school records and failing to mention at all
“her long history of mental health treatment prior to
February 2014.” (Id. at 13).
Claimant asserts that the ALJ improperly declined to give
deferential weight to the opinions of Claimant's treating
psychiatrist, Dr. Anne Zappacosta. (Id. at 15-20).
Citing to the regulations and rulings governing the weight to
be given to a treating source's opinions, Claimant argues
that the ALJ violated these mandates by undervaluing Dr.
Zappacosta's RFC findings without providing good reasons
for doing so. In Claimant's view, the ALJ looked only at
Dr. Zappacosta's most recent clinical notes when
assessing her opinions, which caused the ALJ to overlook the
longitudinal history of Claimant's symptoms. Claimant
indicates that she has had only “mixed success at
maintaining control of her symptoms”; therefore, the
ALJ's analysis was insufficient and his view of her
impairments was inaccurate. (ECF No. 13 at 19).
response, the Commissioner argues that substantial evidence
supports the ALJ's determination that Claimant's
statements were not entirely credible. (ECF No. 16 at 9-12).
The Commissioner contends that the ALJ considered much more
than the objective medical evidence in making his credibility
finding; such as, Claimant's statements, activities, and
medication side effects. The Commissioner posits that the ALJ
correctly concluded that Claimant was doing well, her
symptoms were controlled, and she required mental health
appointments on a less frequent basis. (Id. at
respect to the opinions of Dr. Zappacosta, the Commissioner
emphasizes the ALJ's authority to give less than
deferential weight to a treating source's opinion when
the opinion is not well supported by clinical evidence or is
inconsistent with other substantial evidence. (Id.
at 12). The Commissioner asserts that Dr. Zappacosta's
RFC findings were clearly inconsistent with her own clinical
records, which confirmed that Claimant had only moderate to
mild symptoms, not the marked symptoms necessary to justify
Dr. Zappacosta's extreme RFC limitations. (Id.
at 13). The Commissioner notes that the ALJ obviously
credited some of Dr. Zappacosta's opinions, because the
ALJ included limitations in the RFC finding designed to
address Claimant's mental functional deficits. The
Commissioner adds that Claimant's argument concerning the
longitudinal record is fallacious, because the longitudinal
record supports the opposite conclusion. Rather than
demonstrating a rocky course that persisted despite
treatment, the clinical record reflects Claimant's
gradual and sustained improvement over time as she complied
with recommended therapies.
undersigned reviewed all of the evidence before the Court,
including the records of Claimant's allegations, her
parents' statements, and the health care examinations,
evaluations, and treatment. The information that is most
relevant to Claimant's challenges is summarized as
Statements of Claimant and Her Parents
Adult Function Report prepared on March 26, 2014, Claimant
stated that she lived with her parents and spent most of her
day laying around and sleeping. (Tr. at 207-08, 214). She had
pets that she fed, but relied on her parents to help her with
their care. (Tr. at 208). Claimant attended to her own
personal grooming, but had little interest in dressing and
bathing. Her parents had to remind her to groom and take her
medications. (Tr. at 209). Claimant was able to make quick
snacks, but her mother did most of the cooking. Claimant
occasionally washed the dishes, but did little else due to a
reported lack of energy. (Tr. at 209-10). Claimant did not
drive or go out alone, had anxiety attacks, avoided shopping,
and found money management to be confusing. (Tr. at 210).
Claimant stated that her only hobby was watching television,
although she admitted to having online friends. (Tr. at 211).
She denied being able to follow instructions or pay
attention, explaining that she had attention deficit
disorder. (Tr. at 211-12). Claimant indicated that she could
not get along with her parents or teachers, which caused her
to drop out of school. She complained of having depression
and panic attacks. (Tr. at 213).
father, Michael Shank, completed a Third Party ADL form on
April 28, 2014. (Tr. at 215-22). Mr. Shank stated that his
daughter spent her days watching television, sleeping, and
playing with her pets. (Tr. at 215). He felt that Claimant
had been ill her entire life, indicating that she could not
sleep due to anxiety, had little interest in her personal
appearance, and did very little around the house. (Tr. at
216-17). Mr. Shank added that Claimant had a difficult time
staying on task. (Tr. at 217-18). She did not venture outside
on her own, had never driven, and infrequently accompanied
her mother to the grocery store. (Tr. at 218). Claimant had
some online friends and went to physician appointments;
otherwise, she did not socialize. (Tr. at 219). Mr. Shank
added that Claimant was easily upset, and stress exacerbated
her psychological symptoms. (Tr. at 221).
administrative hearing on June 15, 2015, Claimant testified
that she had severe depression, which caused her to stay in
bed once or twice every couple of weeks. (Tr. at 39).
Claimant indicated that she had a few friends at school, but
after dropping out, she lost touch with them. All of her
current friends were people she met online. Claimant
testified that she spent most of her day on the computer. She
did not venture out of the house very often. Claimant
testified that she did work three part-time days at
Suboxicon, a comic book convention held in October 2014 at
Huntington's Big Sandy Arena. (Tr. at 40-41). Claimant
testified that she enjoyed the convention, but experienced a
great deal of stress and had a panic attack on the first day.
(Tr. at 42).
stated that she had suffered from emotional problems since
childhood. (Id.). Her psychiatrist, Dr. Anne
Zappacosta, wrote prescriptions to manage Claimant's
symptoms and counseled her once each month. (Tr. at 42-43).
Claimant testified that her appointments with Dr. Zappacosta
had decreased with time; however, Dr. Zappacosta had recently
left the area, so Claimant was going to have to start
treatment with another psychiatrist. (Tr. at 43-44).
mother also testified at the hearing. Claimant's mother
stated that Claimant would not be able to manage a full-time
job, because she was “unable to get up at a set
time.” (Tr. at 55). According to Claimant's mother,
Claimant missed a great deal of school due to her inability
to get up and out of bed. Claimant's mother agreed that
part of Claimant's problem was lack of motivation, but
she also suffered with psychological issues since grade
school, and those issues likely caused many of the
difficulties experienced by Claimant. (Tr. at 55-57).
Claimant's mother testified that she had two other
children, who did not exhibit behavioral problems like
Claimant, and Claimant's parents had struggled for years
trying to find treatment that would help her. (Tr. at 56).
Claimant's mother expressed concern over how Claimant
would live when her parents died, noting that Claimant showed
no desire to seek employment. (Tr. at 56-57). Claimant's
mother confirmed that Claimant had no driver's license
and only opened a bank account in the course of applying for
SSI. (Tr. at 59). She stated that Claimant tended to be
combative and disagreeable and spent little face-to-face time
with people who were not family members. (Tr. at 58-60).
Claimant's mother felt Claimant had improved with Dr.
Zappacosta's treatment, but added that Claimant still had
severe emotional issues and would require medications for the
rest of her life. (Tr. at 60). Claimant's mother
confirmed that Dr. Zappacosta originally saw Claimant one
time per month, but had reduced the visits to one every three
months, because she felt the medications were working. (Tr.
age of 9 years, 9 months, Claimant underwent a psychological
evaluation ordered by the Cabell County Board of Education
due to Claimant's lack of effort and achievement scores
that were significantly lower than her assessed cognitive
ability. (Tr. at 309-14). At that time, Claimant had good
attendance at school and made friends with those in her peer
group. (Tr. at 310). Despite receiving average IQ scores on
the Wechsler Intelligence Scale for Children, subtests
indicated that Claimant had significant problems with
concentration. (Tr. at 310-11). She was receiving special
education due to poorly sustained concentration and effort.
(Tr. at 313). However, Claimant admitted that she stayed up
past midnight watching television, which made her tired in
the morning. (Id.). She did not participate in any
sports and preferred sedentary activity. The examining
psychologist opined that Claimant's test scores and
evaluation were suggestive of attention deficit disorder, or
some other medical or emotion problem with similar
symptomatology. (Tr. at 314).
school records demonstrate a longstanding need for
Individualized Education Plans. (Tr. at 247-326). According
to school records, Claimant had great difficulty passing the
ninth grade due to truancy and lack of motivation. (Tr. at
260). Claimant was evaluated at River Park Hospital and was
diagnosed with bipolar disorder and depression.
(Id.). She began taking medication and attending
Innerchange, a program offered by Prestera Centers for Mental
Health (“Prestera”). Claimant was unable to stay
in the program for the recommended six weeks, however, due to
insurance issues. (Id.).
Individualized Education Plan prepared in ninth grade, the
evaluators identified absenteeism as Claimant's biggest
obstacle to success in school. (Tr. at 261). Indeed, Claimant
missed as many as half of all instructional days each
six-week period. (Tr. at 273). In addition to absenteeism,
Claimant showed little interest in changing her approach to
school. (Tr. at 261). She refused to engage in interviews or
personal interest inventories to identify career paths;
instead, she advised that her plan was to quit school at age
sixteen. The evaluators opined that Claimant had the ability
to complete her course work and pass classes, noting that her
grades on core subjects at Innerchange, an alternative school
offered by Prestera Centers for Mental Health
(“Prestera”), were above average. They
recommended that she continue in co-taught courses until she
achieved sophomore status and then consider attending classes
at the Cabell County Voc-Tech Center for further career
training. (Tr. at 262). Of note, at that time, Claimant was
placed in general education, rather than special education
courses. (Tr. at 269).