United States District Court, S.D. West Virginia, Huntington Division
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 (hereinafter
“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 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. 6, 7). The undersigned
has fully considered the evidence and the arguments of
counsel. For the following reasons, the undersigned
respectfully RECOMMENDS that Plaintiff's
request for judgment on the pleadings be
DENIED, the Commissioner's request for
judgment on the pleadings be GRANTED, the
Commissioner's decision be AFFIRMED, and
this case be DISMISSED and removed from the
docket of the Court.
December 8, 2010, Plaintiff, Terence Troy Steiner
(“Claimant”), completed an application for DIB,
alleging a disability onset date of July 31, 2007 due to
“bipolar, depression, anxiety, panic attacks, [and]
sleep disorder.” (Tr. at 124-25, 169). The Social
Security Administration (“SSA”) denied
Claimant's application initially and upon
reconsideration. (Tr. at 54-58, 64-66). Claimant filed a
request for an administrative hearing, which was held on May
2, 2012 before the Honorable Charlie Paul Andrus,
Administrative Law Judge (“ALJ Andrus”). (Tr. at
31-51). By written decision dated July 3, 2012, ALJ Andrus
found that Claimant was not disabled as defined in the Social
Security Act. (Tr. at 14-30). The Appeals Council denied
Claimant's request for review and Claimant filed a civil
action seeking judicial review pursuant to 42 U.S.C. §
405(g). The District Court concluded that ALJ Andrus's
decision did not reflect full consideration of Claimant's
mental and physical impairments and their functional effects.
(Tr. at 1169-87). Therefore, the District Court reversed the
Commissioner's final decision denying Claimant's DIB
application and remanded the case to the agency for further
administrative proceedings. (Id.).
remand, the Appeals Council assigned Claimant's
application to the Honorable Jerry Meade, Administrative Law
Judge (the “ALJ”), and ordered the ALJ to offer
Claimant the opportunity for another hearing, take any
further action needed to complete the record, and issue a new
decision. (Tr. at 992, 1167). On June 6, 2017, Claimant
appeared for a hearing before the ALJ. (Tr. at 1114-40). By
written decision dated November 17, 2017, the ALJ found that
Claimant was not disabled as defined in the Social Security
Act. (Tr. at 989-1010). Claimant did not seek review from the
Appeals Council. See (ECF No. 6 at 3). Instead,
Claimant timely filed the present civil action seeking
judicial review pursuant to 42 U.S.C. § 405(g). (ECF No.
1). The Commissioner filed an Answer and a Transcript of the
Administrative Proceedings, (ECF Nos. 4, 5), and both parties
filed memoranda in support of judgment on the pleadings. (ECF
Nos. 6, 7). Consequently, the issues are fully briefed and
ready for resolution.
was 36 years old on his alleged onset date and 40 years old
on his date last insured. He has a Bachelor of Arts degree in
psychology with additional credits toward a Master's
Degree in physiology, and he communicates in English. (Tr. at
168, 1120). Claimant previously worked as a restaurant host;
activities coordinator/recreation aide in a nursing home;
telemarketer; and a telemarketing supervisor. (Tr. at 46).
Summary of 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 for disability insurance benefits through
March 31, 2011. (Tr. at 995, Finding No. 1). At the first
step of the sequential evaluation, the ALJ confirmed that
Claimant had not engaged in substantial gainful activity from
July 31, 2007, his alleged onset date, through his date last
insured. (Id., Finding No. 2). At the second step of
the evaluation, the ALJ found that Claimant had the following
severe impairments: “osteoarthritis of the left ankle;
history of right tibial pillion fracture, status post open
reduction internal fixation; bursitis of the left hip;
history of L2 compression fracture; lumbar sprain; leg-length
discrepancy; bipolar disorder; generalized anxiety disorder;
panic disorder; and alcohol dependence.” (Id.,
Finding No. 3). The ALJ also considered Claimant's
alleged sleep disorder but determined that it was not a
medically determinable impairment. (Tr. at 995). Under 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 995-97, Finding No. 4). Accordingly, the ALJ
determined that Claimant possessed:
[T]he residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c). He can occasionally climb
ladders, ropes, or scaffolds. He can occasionally stoop,
kneel, crouch, and crawl. He can frequently balance and climb
ramps/stairs. He must avoid concentrated exposure to
vibrations and hazards such as moving machinery and
unprotected heights. The claimant can understand, remember,
and carry out simple instructions. He can have occasional
changes in the work setting. He can have no interaction with
the public. He can have occasional interaction with
co-workers and supervisors.
(Tr. at 997-1002, Finding No. 5).
fourth step, the ALJ determined that Claimant could not
perform any of his past relevant work. (Tr. at 1002, Finding
No. 6). Therefore, the ALJ reviewed Claimant's past work
experience, age, and education in combination with his RFC to
determine his ability to engage in other substantial gainful
activity. (Tr. at 1001-02, Finding 7 through 10). The ALJ
considered that (1) Claimant was born in 1970 and was defined
as a younger individual age 18-49 on his date last insured;
(2) Claimant had at least a high school education and could
communicate in English; and (3) transferability of job skills
was not an issue because the Medical-Vocational Rules
supported a finding that Claimant was “not disabled,
” regardless of his transferable job skills. (Tr. at
1002, Finding 7 through 9). Taking into account these
factors, Claimant's RFC, and the testimony of a
vocational expert, the ALJ determined that Claimant could
perform other jobs that existed in significant numbers in the
national economy, including unskilled work as a store
laborer, furniture cleaner, price marker, routing clerk,
table worker, and sorter. (Tr. at 1003, Finding No. 10).
Consequently, the ALJ concluded that Claimant was not
disabled as defined by the Social Security Act and was not
entitled to benefits. (Id., Finding No. 11).
Claimant's Challenge to the Commissioner's
contends that the Commissioner's decision is not
supported by substantial evidence because the ALJ failed to
(1) conduct a proper subjective symptom analysis; (2)
properly weigh the opinion of Claimant's treating
psychiatrist, Rownak Afroz, M.D.; and (3) accept the
vocational expert's testimony that a person cannot work
if the person is off-task 20 percent or more of the workday.
(ECF No. 6). In response to Claimant's arguments, the
Commissioner contends that substantial evidence supports the
ALJ's conclusions that Claimant's statements were not
entirely consistent with the evidence and that Dr.
Afroz's opinion was entitled to little weight. (ECF No.
undersigned has reviewed all evidence of record and
summarizes the evidence that is most relevant to the issues
in dispute below:
little over a year before his alleged onset of disability,
Claimant was admitted to the psychiatric unit at Flagler
Hospital in St. Augustine, Florida on May 23, 2006 after he
presented to the emergency room reportedly feeling very
depressed and suicidal. (Tr. at 260). The attending
psychiatrist diagnosed Claimant with bipolar disorder without
psychotic features. (Id.). Claimant was prescribed
lithium and “improved considerably” over the
subsequent six to seven days. (Id.). On May 30,
2006, Claimant was discharged. He was noted to be alert,
oriented, quite cooperative, and obviously very bright and
talented. He exhibited no signs of delusions, mostly normal
thoughts, and a good mood. (Tr. at 260-61). Claimant was
instructed to continue taking lithium and to follow up with
group activity and recreational therapy. (Id.).
November 14, 2006, Claimant was again admitted to the
psychiatric unit at Flagler Hospital after an argument with
his partner, who called the police and reported that Claimant
was suicidal. (Tr. at 249). Claimant initially presented to
the emergency room screaming and yelling in a very
intoxicated state with a blood alcohol content of 0.269.
(Id.). It was suspected that he took an overdose of
Inderal and Klonopin, but he stated that he had only taken
three or four Klonopin tablets to “get some
sleep.” (Id.). Claimant denied being suicidal
and stated that he was doing very well on lithium and staying
quite stable. (Id.). However, he explained that he
had trouble finding a job and wanted to move to Arizona to
find work, which upset his partner and caused a fight.
(Id.). Claimant denied regular use of alcohol or
other drugs and stated that he had been sober since
“last May.” (Id.). Claimant was
evaluated by the attending psychiatrist, Gregory Dent, M.D.,
who noted that Claimant's speech was clear after
“sobering up;” his mood was euthymic; he had an
appropriate and full range of affect, including humor; his
thought processes were clear and coherent; he absolutely
denied any suicidal intent or active suicidal thoughts; and
his cognition was intact. (Id.). Dr. Dent's
assessment was that Claimant suffered from alcohol
intoxication with irrational behavior, which was resolved;
bipolar disorder by history; and alcohol abuse. (Tr. at 250).
Dr. Dent found that Claimant did not meet the criteria for an
involuntary psychiatric admission, noting that Claimant had
plans for his future and intended to discontinue the
relationship with his partner, which he believed would solve
the stress and fighting. (Id.). Claimant planned to
stay with his parents until he moved to Arizona.
(Id.). Claimant was discharged the same day that he
entered the hospital. (Id.).
April 5, 2007, Claimant was admitted to the psychiatric unit
at Flagler Hospital for a third time after his mother called
authorities stating that Claimant, who had been drinking
alcohol and taking Klonopin, threatened to overdose during an
argument with her. (Tr. at 239). Claimant was evaluated the
next morning by psychiatrist, Robert G. Baringer, M.D., who
stated that Claimant had a normal mental status; seemed
stable; was relevant, coherent, oriented, and clear; denied
any suicidal ideation, intention, or impulse; had intact
memory and good intelligence; and showed no evidence of any
major mental illness. (Id.). Dr. Baringer found that
Claimant did not meet the criteria for involuntary
hospitalization and released Claimant to follow up with his
outpatient providers. (Id.).
23, 2007, Claimant saw Nicole Wilson, M.A., L.P.C., L.S.W.,
for individual therapy at Prestera Center. Claimant stated
that he recently moved from Maine where he was living with
friends. (Tr. at 435). He was currently homeless and living
at the City Mission. (Id.). Claimant was working on
securing government-assisted housing. (Id.). Rapport
was easily established at the visit and a plan was developed
regarding the issues to focus on in therapy. (Id.).
Claimant expressed that he wished to work on his
saw Ms. Wilson again on August 7, 2007. He was still living
in the City Mission, but Claimant stated that he was
“so excited” because his article was published in
a newspaper in Florida. (Tr. at 436). During his next therapy
appointment on August 27, 2007, Claimant told Ms. Wilson that
he was “not feeling the same way about things, ”
almost like he was “changing and becoming a different
person.” (Tr. at 437). At Claimant's subsequent
visit with Ms. Wilson on September 11, 2007, Claimant advised
that he had moved into his own apartment and that he was
doing well. (Tr. at 438). Claimant stated that his
“usual triggers” did not cause him any
“bipolar episodes.” (Id.). He felt much
more in control of his life and even “tried to start a
few of his old triggers to see what would happen and nothing
did.” (Id.). On October 5, 2007, Claimant had
“no real problems to report” to Ms. Wilson. (Tr.
at 439). He continued to feel much better and had no major
“bipolar incidents.” (Id.). On November
28, 2007, Claimant told Ms. Wilson that he believed that
lithium was kicking in and he felt better. (Tr. at 440). He
was angry that his previous provider allowed him to run out
of medications and was writing a grievance to report the
issue. (Id.). On December 5, 2007, Claimant told Ms.
Wilson that he believed that his ex-partner was stalking him
and he was afraid. (Tr. at 441). Thus, he was considering
“leaving the area.” (Id.).
Claimant saw psychiatrist, Nika Razavipour, M.D., two days
later on December 7, 2007. (Tr. at 461). Claimant reported
feeling “fine.” (Id.). His diagnoses
were bipolar disorder; alcohol dependence; and anxiety
disorder, not otherwise specified. (Id.). Dr.
Razavipour renewed Claimant's prescriptions for lithium,
clonidine, and lisinopril. (Id.). He discontinued
Claimant's prescription for trazodone due to lack of
efficacy and started Claimant on a trial of Seroquel.
saw Dr. Razavipour again on January 11, 2008. (Tr. at 463).
Claimant was doing very well on lithium and denied having any
complaints or mood problems. (Id.). Claimant felt
that he was stable enough to start working again, possibly as
a substitute teacher. (Id.). Dr. Razavipour renewed
Claimant's prescriptions for lithium and Seroquel.
(Id.). On February 4, 2008, Claimant told Ms. Wilson
that things seemed to be “looking up;” his
bipolar disorder seemed to be under control; he was stable on
medications; and he was excited about a potential new
relationship. (Tr. at 442). Claimant followed up with Dr.
Razavipour for medication management on March 7, 2008. (Tr.
at 598-99). Claimant stated that he felt great. (Tr. at 598).
Claimant's attitude was cooperative; his affect was
euthymic with a full range of expressions; his speech was
clear and coherent; his thought processes were goal directed;
his memory and concentration were intact; and his insight and
judgment were good. (Id.). Claimant was continued on
lithium and Seroquel and scheduled to return to Dr.
Razavipour in three months. (Tr. at 599). On March 31, 2008,
Claimant told Ms. Wilson that his bipolar disorder seemed to
be under control, and he was doing well on lithium. (Tr. at
444). He was possibly moving to Ashland, Kentucky to live
with his significant other. (Id.). On May 1, 2008,
Claimant told Ms. Wilson that he felt like “things were
falling into place” and that he was “feeling
better and making progress in [his] life.” (Tr. at
445). He stated that he was happy and excited about
“the way that [his life] was going.”
(Id.). He was politically active and was helping a
friend with his greenhouse and enjoyed the work.
(Id.). Ms. Wilson assessed that Claimant was
probably ready for discharge from therapy. (Id.).
6, 2008, Claimant had his final session with Ms. Wilson. (Tr.
at 432, 447). Claimant stated that “things fell
through” with his new love interest, but that he was
“ok with it.” (Id.). He denied any manic
episodes or thoughts or any impulsive behaviors. (Tr. at
447). Claimant continued to enjoy working in the greenhouse,
and his mental status was within normal limits.
(Id.). Claimant was moving to Florida, but Ms.
Wilson noted that Claimant successfully completed therapy
before leaving. (Tr. at 432). Claimant also saw Dr.
Razavipour on June 6, 2008. (Tr. at 462). Claimant was
feeling fine, was stable, and was sleeping well, sometimes
even without taking Seroquel. (Id.). Consistent with
what Claimant told Ms. Wilson, he stated that he was working
in a greenhouse and planning to move to Florida to find work.
(Id.). Claimant was no longer taking clonidine or
lisinopril. (Id.). Dr. Razavipour renewed
Claimant's prescriptions for lithium and Seroquel.
(Id.). Claimant followed up with Dr. Razavipour
again on August 10, 2008. He was continued on lithium and
started on trazadone. (Tr. at 597).
November 2, 2008, Claimant was voluntarily admitted to the
psychiatric unit at St. Mary's Medical Center in
Huntington, West Virginia after he presented to the emergency
room with suicidal ideation. (Tr. at 288). Claimant was
evaluated by psychiatrist, Kenneth M. Fink, M.D.
(Id.). Claimant stated that “things went
downhill” since he stopped taking his prescribed
medications, including lithium, two weeks earlier when he
became unable to pay for his prescriptions. He admitted to
self-medicating with alcohol. (Id.). Claimant
related that he had been living in St. Augustine, Florida,
but returned to Huntington two or three weeks ago. (Tr. at
289). In terms of his history, he stated that he had gone
through 14 jobs in the past two or three years.
(Id.). He reported being a “child
prodigy” who graduated from the North Carolina School
of Arts, worked for a Belgian dance company, earned a
Bachelor of Arts degree in psychology from Marshall
University, and earned credits toward a master's degree
that was not conferred because he had some disagreement and
“walked out.” (Id.). On examination,
Claimant was oriented in all spheres, but his mood was
depressed, and his affect was flat. (Tr. at 290). He did not
exhibit signs of psychosis or delusions; his memory and
judgment were intact; his eye contact was marginal-to-fair;
and he was cooperative. (Tr. at 291). Claimant remained in
the hospital for over a week and received individual and
group therapy, as well as medication adjustments. (Tr. at
382). Dr. Fink evaluated Claimant again on November 10, 2008.
(Id.). Claimant was alert and oriented and his mood
was improved. (Id.). He was discharged in stable
condition with discharge diagnoses of mood disorder, not
otherwise specified; provisional bipolar disorder, not
otherwise specified; anxiety disorder, not otherwise
specified; episodic alcohol dependence; nicotine dependence;
and remote cocaine abuse that was in remission. (Tr. at 383).
followed up with Ms. Wilson the day after his discharge from
St. Mary's Medical Center. (Tr. at 450). Claimant stated
that he was glad that he went to the hospital and that his
medications were stabilizing again. (Id.). He
explained that he ended up in the hospital after he went on a
“drinking binge” because his lithium had been out
of balance, which rendered him manic for quite some time.
next month, Claimant saw Dr. Razavipour on December 4, 2008.
Dr. Razavipour took note of the fact that Claimant had been
in Florida off of his medications, became very manic, was
drinking excessively, and then became suicidal. (Tr. at 464).
Dr. Razavipour's diagnoses of Claimant remained bipolar
disorder; alcohol dependence; and anxiety disorder, not
otherwise specified. (Id.). Dr. Razavipour
prescribed Tegretol, Seroquel, and propranolol.
(Id.). Dr. Razavipour reevaluated Claimant on
December 18, 2008. (Tr. at 465). Claimant ...