Moore v. Colvin ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ANGALIA MOORE, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-cv-527 (TSC)
)
NANCY A. BERRYHILL 1, )
)
Defendant. )
)
)
MEMORANDUM OPINION
Plaintiff Angalia Moore, appearing pro se, challenges the denial of her
application for disability insurance benefits. Defendant has moved for judgment of
affirmance (ECF No. 14), and Plaintiff has moved for judgment of reversal (ECF No.
17). For the reasons explained below, Defendant’s motion will be GRANTED and
Plaintiff’s motion will be DENIED.
I. BACKGROUND
On January 2, 2013, Plaintiff, approaching her 55 th birthday, applied for
disability benefits, alleging that she was unable to work because of disabling conditions
that began on April 10, 2012 (onset date). (Admin. Record (“AR”) 191, ECF No. 7).
Plaintiff listed her disabling conditions as depression, asthma, liver disease and thyroid.
(See AR 276). Her claim was denied initially on March 22, 2013, and upon
1
By substitution pursuant to Fed. R. Civ. P. 25(d).
1
reconsideration on June 6, 2013. Plaintiff was granted a hearing before an
Administrative Law Judge (“ALJ”), which was held on March 4, 2015. Plaintiff,
appearing with a non-attorney representative (AR 150), testified at the hearing, as did
an impartial vocational expert, Dr. James Michael Ryan. (See AR 18-28, June 9, 2015
ALJ Dec., ECF No. 7-2; AR 47-80, Tr. of Oral Hrg.). The ALJ found:
1. Plaintiff meets the insured status requirements of the Social
Security Act through March 30, 2017.
2. Plaintiff has not engaged in substantial gainful activity since
April 10, 2012, the alleged onset date. 20 CFR 404.1571 et seq.
3. Plaintiff has the following severe impairments: “probable”
confusional migraine, asthma, and obesity. 20 CFR 404.1520(c).
4. Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 20 CFR
404.1520(d), 404.1525 and 404.1526.
5. Plaintiff has the residual functional capacity to perform
medium work.
6. Plaintiff is capable of performing past relevant work as a tax
preparer, accounts receivable clerk, and an office manager[,] [which]
does not require the performance of work-related activities precluded by
the claimant’s residual functional capacity. 20 CFR 404.1565.
7. Plaintiff has not been under a disability, as defined in the
Social Security Act, from April 10, 2012, through the date of this
decision (on June 9, 2015). 20 CFR 404.1520(f).
(AR 20, 22, 27). In a letter dated December 31, 2015, the Appeals Council denied
Plaintiff’s request for review. (AR 1).
2
1. Physical Impairments
The ALJ found that Plaintiff’s physical impairments “have caused more than
minimal limitation in [Plaintiff’s] ability to work” but found “very little objective
evidence to support [Plaintiff’s] allegations of disabling impairments.” (AR 20). The
ALJ also considered Plaintiff’s reports and testimony that she had experienced seizures
and “seizure-like activity,” and had a speech impediment, but found no “clinical and/or
diagnostic evidence of a seizure disorder or epilepsy” and thus no “medically
determinable impairment.” (Id.). Similarly, the ALJ did not “consider” Plaintiff’s
alleged speech impediment to be a medically determinable impairment partly because of
“the lack of a formal diagnosis,” but also because of Plaintiff’s “inconsistent
statements” and testimony about its appearance and duration. (AR 21).
2. Mental Impairments
The ALJ acknowledged that “[t]he record documents a mental health impairment
variously diagnosed” but found no “evidence of mental health concerns or treatment
other than the diagnosis of ‘major depression, in remission,’” which “was made [in
March 2011] at a court-mandated psychiatric evaluation.” (AR 21). The ALJ
determined from the 2011 medical report that Plaintiff had then “endorsed a history of
depression, with crying spells and suicidal thoughts[,]” received therapy between 2008
and 2010, was prescribed medicine “in the past,” but “had not taken any medication in
two years.” (Id.). The ALJ added that Plaintiff’s “mental status evaluation was
normal.” (Id.)
3
The ALJ considered “the four broad functional areas set out in the disability
regulations for evaluating mental disorders,” encompassing “activities of daily living,
social functioning, concentration, persistence or pace, and episodes of decompensation,
of extended duration” but found that the record contained “no [documented]
limitations” on Plaintiff’s daily living, social functioning and concentration. (AR 22).
The ALJ also found that Plaintiff had “experienced no episodes of decompensation . . .
of extended duration,” and attributed Plaintiff’s self-described mental limitations
“solely . . . to her physical impairments.” The ALJ concluded: “Because the claimant’s
medically determinable mental impairments cause no limitation in any of the first three
functional areas and ‘no’ episodes of decompensation, which have been of extended
duration in the fourth area, they are nonsevere.” (AR 22) (citing 20 CFR
404.1520a(d)(1)).
The ALJ examined various other medical diagnoses in the record made between
2011 and 2015 but concluded that none of Plaintiff’s impairments, singularly or
combined, met or medically equaled the severity of one of the Act’s listed impairments.
(AR 21-22).
3. Medical Opinions
The ALJ considered the written report of Dr. Rebecca Brosch, who conducted a
consultative psychological examination of Plaintiff in January 2015. At that time,
Plaintiff “indicated that she was living with her adult son, who had ‘essentially become
her caretaker.’” (AR 21). Plaintiff attributed her work stoppage in 2012 to a “seizure
disorder and development of a severe speech impediment” and conveyed the concerns
4
of her neurologist “that she may have Huntington’s disease.” (Id.). Plaintiff also
described engaging in seriously impulsive behavior, as well has having anxiety, panic
attacks and mood elevations, among other symptoms. (Id.). Dr. Brosch “observed”
Plaintiff as having “a ‘severe speech impediment,’ with stuttering and stammering,” and
“a ‘dysphoric and irritated’ affect, and dysthymic mood.” (Id.). Dr. Brosch “opined”
that Plaintiff “had ‘moderate’ limitation in her ability to respond appropriately to usual
work situations and changes in a routine work setting; ‘moderate’ to ‘marked’
limitations in her ability to understand, remember, and carry out complex instructions,
and [to] interact appropriately with the public[,] co-workers[,] [and] supervisors; and
‘marked to ‘severe’ limitations in her ability to make judgments on complex work-
related decisions.” (AR 21-22). The ALJ gave “little weight” to Dr. Brosch’s
observations, finding them “inconsistent with the record as a whole and appear based
solely on [Plaintiff’s] subjective report[ing].” (AR 22).
The ALJ also considered the findings of Dr. Justine Magurno, who also
conducted a consultative examination of Plaintiff in January 2015. Dr. Magurno
“observe[d]” Plaintiff’s “‘abnormal speech’ and assessed her with ‘marked
communication limitations.’ ” (AR 26). The ALJ noted that Plaintiff had reported
dizziness “but the physical examination findings were normal.” (Id.). Dr. Magurno
opined that Plaintiff “retained the ability to lift and carry up to ten pounds
continuously, and up to twenty pounds occasionally; . . . had no limitations in sitting,
standing, or walking; and . . . had to avoid exposure to unprotected heights, moving
machinery, humidity and wetness, pulmonary irritants, and extreme temperatures.”
5
(Id.). The ALJ assigned “partial weight” to Dr. Magurno’s opinion, finding the lifting,
carrying, and speech limitations “not substantiated by any objective clinical findings of
record.” (Id.). The ALJ further found “no clinical or diagnostic findings of record that
would warrant more significant [lifting and carrying] limitations than those found by
the State medical consultants” (id.), who found that Plaintiff “had retained the capacity
to perform work at a medium exertional level, with additional environmental
limitations, given her asthma and alleged history of fainting” (id. at 25).
The ALJ considered as well numerous outpatient and emergency room hospital
records and the treatment records of Plaintiff’s primary care physicians, Dr. Anne
Cioletti and Dr. Godswill Okoji. (See generally AR 20-27).
II. LEGAL STANDARD
1. Statutory Framework
The D.C. Circuit has explained:
To qualify for disability insurance benefits and supplemental security
income under Titles II and XVI of the Act, [the claimant] must
establish that she is “disabled.” 42 U.S.C. §§ 423(a)(1)(D),
1382(a)(1). “Disability” means the “inability to engage in any
substantial gainful activity by reason of any medically determinable
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 12 months.” Id. §§ 423(d)(1)(A), 1382c(a)(3)(A). With
certain exceptions . . . , an individual is disabled “only if [her] physical
or mental impairment or impairments are of such severity that [she] is
not only unable to do [her] previous work but cannot, considering
[her] age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy.” Id.
§§ 423(d)(1)(A), 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation
process for assessing a claimant’s alleged disability. See 20 C.F.R. §§
404.1520, 416.920. The claimant carries the burden of proof on the
6
first four steps. Id. §§ 404.1520, 416.920. First, the claimant must
demonstrate that she is not presently engaged in “substantial gainful”
work. Id. §§ 404.1520(b), 416.920(b). Second, a claimant must show
that she has a “severe impairment” that “significantly limits [her]
physical or mental ability to do basic work activities.” Id. §§
404.1520(c), 416.920(c). Third, if the claimant suffers from an
impairment that meets the duration requirement and meets or equals
an impairment listed in Appendix 1 to the Commissioner's regulations,
she is deemed disabled and the inquiry is at an end. Id. §§ 404.1520(d),
416.920(d). If the claimant does not satisfy step three, the inquiry
proceeds to the fourth step, which requires her to show that she suffers
an impairment that renders her incapable of performing “past relevant
work.” Id. §§ 404.1520(e), 416.920(e). Once a claimant has carried
the burden on the first four steps, the burden shifts to the
Commissioner on step five to demonstrate that the claimant is able to
perform “other work” based on a consideration of her “residual
functional capacity” (RFC), age, education and past work experience.
Id. §§ 404.1520(f), 416.920(f).
Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004) (pronoun alterations in
original). The ALJ “has the power and the duty to investigate full all matters in issue,
and to develop the comprehensive record required for a fair determination of
disability.” Id. at 999 (quoting Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C. Cir.
1989) (internal quotation marks and other citation omitted)).
2. Review Standard
The district court is empowered to review “any final decision of the
Commissioner of Social Security made after a hearing to which [the plaintiff] was a
party.” 42 U.S.C. § 405(g). Judicial review is limited, however, to assessing from the
pleadings and administrative record whether (1) the decision is supported by
“substantial evidence in the record,” and (2) the “the relevant legal standards” were
applied correctly. Butler, 353 F.3d at 999 (citations omitted); Igonia v. Califano, 568
F.2d 1383, 1389 (D.C. Cir. 1977). If the answer is yes to both requirements, the
7
Commissioner’s “ultimate determination will not be disturbed[.]” Butler, 353 F.3d at
999. Plaintiff bears the “burden of demonstrating” the opposite. Lane-Rauth v.
Barnhart, 437 F. Supp. 2d 63, 64 (D.D.C. 2006) (citing Curry v. Apfel, 209 F.3d 117,
122 (2d Cir. 2000) (other citation omitted)). If “additional evidence [is needed] for any
reason,” the court should remand the case to the Commissioner, as “[t]he Act directs the
court to enter its judgment upon the pleadings and the transcript of the record.” Igonia,
568 F.2d at 1389.
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Butler, 353 F.3d at 999 (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and other
citation omitted)). Its showing requires “more than a scintilla [of evidence], but . . .
something less than a preponderance of evidence.” Id. (citation and internal quotation
marks omitted). Although the Court must closely scrutinize the entire record, Butler,
353 F.3d at 999, “[s]ubstantial-evidence review is highly deferential to the agency fact-
finder,” and “reversal of an agency decision under that standard is rare.” Rossello ex
rel. Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008). A court may not “review
the case ‘de novo’ or reweigh the evidence,” nor may it substitute its judgment for that
of the Commissioner. Guthrie v. Astrue, 604 F. Supp. 2d 104, 112 (D.D.C. 2009)
(citations omitted). In other words, the court is “not to determine [itself] whether
[Plaintiff] is disabled” but “only whether the ALJ’s finding that she is not is based on
substantial evidence and a correct application of the law.” Butler, 353 F.3d at 999.
8
III. ANALYSIS
As an initial matter, Plaintiff contends that “[a]ll parties are in agreement on the
first three steps [and] [s]tep four [is] the area of disagreement.” (Pl.’s Br. at 1, ECF
No. 16). She is mistaken. As indicated above, the ALJ found that Plaintiff had
satisfied step one (not engaged in substantial gainful work since the onset date) and step
two (severe impairments limiting her ability to work). (AR 20). The third step requires
“the claimant” to show that she “suffers from an impairment that meets the duration
requirement and meets or equals an impairment listed in Appendix 1 to the
Commissioner’s regulations.” Butler, 353 F.3d at 997. The ALJ specifically found that
Plaintiff has no “impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in . . . Appendix 1[.]” (AR 22).
Had the ALJ found the opposite, Plaintiff would have been “deemed disabled and the
inquiry” would have ended. Butler, 353 F.3d at 997 (citing 20 C.F.R. §§ 404.1520(d),
416.920(d)); (see AR 19) (indicating same)).
Plaintiff contends that the ALJ (1) “erred in rejecting her symptom testimony and
. . . assigning little weight to the opinions of her treating medical caretakers”; (2) “did
not give full consideration to all of the health issues[,] limiting [the] decision to
Neurological area, instead of all areas of physical and mental health”; and (3) “failed to
consider [her] advanced age” and that she “at this stage . . . is un-trainable.” 2 (Pl.’s Br.
2
Plaintiff attaches to her motion a letter dated September 28, 2016, from a physician
seeking approval of insurance coverage for a “life-saving” asthma medication. (ECF No.
17 at 5). In addition, Plaintiff claims in the motion that her “symptoms are present 4 to
9
at 1-2, ECF No. 16). Plaintiff also takes issue with the ALJ’s credibility finding,
claiming that she “did not give clear and convincing reasons for making an adverse
credibility determination.” (Id. at 2). As discussed next, Plaintiff’s assertions find no
support in the record.
1. Alleged Symptoms and Impairments
The record shows that the ALJ gave “careful consideration” to “all the evidence”
in the record (AR 20), devoting significant attention to Plaintiff’s alleged physical and
mental impairments. (See id. at 22-23; Hrg. Tr., AR 59-76). The ALJ identified
Plaintiff’s “severe impairments” as “‘probable’ confusional migraine, asthma, and
obesity” and agreed that they “have caused more than minimal limitation in the
claimant’s ability to work.” (AR 20). The ALJ also considered Plaintiff’s testimony
and the medical evidence pertaining to “disability due to seizures, headaches, insomnia,
. . . speech impediment,” and depression (AR 23), and correctly applied the regulations’
“four broad functional areas” for evaluating mental impairments (AR 22). The ALJ
found Plaintiff’s “statements concerning the intensity, persistence and limiting effects”
of her “medically determinable impairments . . . not entirely credible.” (AR 23-24). In
fact, the ALJ found Plaintiff’s credibility “eroded by the inconsistent statements of
record and the absence of objective proof to support her subjective complaints.” (AR
27).
5 days per week at minimum [and] have effectively taken over [her] life.” (Mot. at 3-4).
Because those developments are after the date of the ALJ’s June 9, 2015 decision, they
are beyond the scope of this action. As the ALJ noted, a claimant seeking social security
benefits has “the right to file a new application at any time[.]” (AR 16). Nothing decided
in this case infringes upon that right.
10
Credibility determinations are “solely within the realm of the ALJ,” and “a
reviewing court will only intercede where an ALJ fails to articulate a rational
explanation for his or her finding.” Callaway v. Berryhill, 292 F. Supp. 3d 289, 297
(D.D.C. 2018) (quoting Grant v. Astrue, 857 F. Supp. 2d 146, 156 (D.D.C. 2012)); see
Carnett v. Colvin, 82 F. Supp. 3d 1, 16 (D.D.C. 2015) (noting that the “ALJ’s
assessment of credibility is entitled to great weight and deference, since he had the
opportunity to observe the witness’s demeanor.’”) (quoting Thomas v. Astrue, 677 F.
Supp. 2d 300, 308 (D.D.C. 2010) (other citation omitted)).
Here, the ALJ explained:
Aside from the fact that objective clinical and diagnostic findings have
been normal throughout the record, [Plaintiff] made several inconsistent
statements . . . . There are multiple references to noncompliance with
medication, lack of follow-up with providers, and lack of cooperation
with workup of [Plaintiff’s] conditions, including ae [sic] cardiology
consultation that was a part of her seizure workup. In addition, there are
two instances of record in which [Plaintiff] reported significant
symptoms, yet did not seek emergency medical care due to it being ‘tax
season,’ and due to having plans with her family. The facts suggest that
her symptoms may not have been as severe as she has alleged.
(AR 26-27). In assessing Plaintiff’s alleged speech impediment, the ALJ cited “the lack
of a formal diagnosis,” Plaintiff’s “inconsistent statements regarding [its] appearance,”
and her “testimony that it is not continuously present[.]” (AR 21). The ALJ also cited
as problematic: (1) the absence of evidence to substantiate the “alleged ‘blackout’ or
‘seizures’” for which Plaintiff was mostly treated but for which “testing was normal,
with no findings to support blackout, seizures, or migraines”; (2) the fact that Plaintiff
had told Dr. Brosch in January 2015 “that she was totally dependent on and lived with
her son” but testified at the hearing that “she lives alone”; (3) Plaintiff’s testimony that
11
“she would have difficulty working during the day because of her insomnia,” although
the record contained no “significant complaints about sleep”; and (4) the lack of
evidence supporting Plaintiff’s “allegations concerning a diagnosis or work-up for
Huntington’s disease.” (AR 27). Defendant also has cited portions of the record
showing (1) that Plaintiff’s asthma “was well controlled by medication,” (2) the test
results of her headaches were “normal . . . not ris[ing] to the level of migraines,” and
(3) “although overweight, Plaintiff did not comply with recommended diet and
exercise.” (Def.’s Mem. at 12).
The ALJ’s credibility determination is rationally explained and compliant with
governing law; therefore, it will not be disturbed. Cf. Thigpen v. Colvin, 208 F. Supp.
3d 129, 140 (D.D.C. 2016) (finding “that the ALJ provided exhaustive explanations” for
disbelieving claimant’s alleged “disabling mental health symptoms”), quoting Carnett,
82 F. Supp. 3d at 16, 18 (D.D.C. 2015) (finding decision supported by substantial
evidence where “the ALJ’s credibility determination was . . . based on the whole record
and explained in his decision”) and Brown v. Bowen, 794 F.2d 703, 706 (D.C. Cir.
1986) (“While contradictory evidence may exist, such credibility determinations are for
the factfinder who hears the testimony[.]”).
2. Medical Opinions
The ALJ duly considered the medical opinions. Plaintiff does not specify
which “opinions of her treating medical caretakers” were assigned “little weight” (Br. at
2), but the record indicates that it was those of Dr. Brosch, who opined about Plaintiff’s
mental impairments. In addition, the ALJ assigned “partial weight” to Dr. Magurno’s
12
opinion with regard to Plaintiff’s speech impediment and physical limitations. Both
doctors were “consultative” only and established no “doctor-patient relationship” with
Plaintiff. (AR 1238 and 1250). 3
The ALJ explained that Dr. Brosch’s findings “are inconsistent with the record
as a whole and appear based solely on the claimant’s subjective report.” (AR 22). The
ALJ noted that the “record does not contain evidence of mental health concerns or
treatment, other than the [2011] diagnosis of ‘major depression, in remission.’” 4 (Id.).
After elaborating on the mental health finding in light of the “four broad functional
areas set out in the disability regulations,” the ALJ concluded that Plaintiff’s “mental
health impairment does not cause more than minimal limitation in the claimant’s ability
to perform basic mental work activities and is therefore nonsevere.” (Id.). The ALJ
“was not required to uncritically accept the consultative examiner’s opinion, given the
3
Under the treating physician rule, a treating physician’s opinions must be given
“substantial” weight but are not controlling if contradicted by substantial evidence and
the ALJ explains why they are given less weight. Jones v. Astrue, 647 F.3d 350, 355
(D.C. Cir. 2011). An ALJ “who rejects the opinion of a treating physician” must “explain
his reasons for doing so.” Id. (citation and internal quotation marks omitted). The
opinions of consultative examiners, however, are accorded no such deference. Plaintiff
does not contend that the ALJ rejected the opinions of her treating doctors in violation of
the rule, and it is reasonably safe to conclude from comparing the ALJ’s discussion of
the treating physician records (AR 24-26) with her findings (AR 27) that any such
argument is untenable.
4
Plaintiff testified at the hearing that she “suffer[s] from depression connected to a few
close deaths,” starting with her sister, then her granddaughter, and finally her brother,
who committed suicide. (AR 59-60). Plaintiff testified that she has “never shaken it”
but did not answer whether, as posed by her representative, “any of those deaths [were]
recent.” (AR 60).
13
glaring inconsistencies and [the questions surrounding] Plaintiff’s credibility[.]”
Thigpen, 208 F. Supp. 3d at 141.
Similarly, the ALJ discounted Dr. Magurno’s opinion that Plaintiff had “marked
communication limitations” due to “abnormal speech” and could lift and carry at most
ten pounds continuously and twenty pounds occasionally. The ALJ explained that those
findings were “not substantiated by any objective clinical findings of record” and were
inconsistent with other medical evidence. (AR 26). The ALJ found “no clinical or
diagnostic findings of record that would warrant more significant [lifting and carrying]
limitations than those found by the State medical consultants,” (id.), who opined that as
of June 2013, Plaintiff had “retained the capacity to perform work at a medium
exertional level, with additional environmental limitations, given her asthma and
alleged history of fainting” (AR 25).
3. Plaintiff’s Age
Finally, it is clear that the ALJ’s consideration “of the entire record” included
Plaintiff’s age. The ALJ indeed referenced Plaintiff’s age in the hypotheticals posed to
the vocational expert, including the following:
Q. Assume a person of the claimant’s age, education, and work
experience; lifting and/or carrying 50 pounds occasionally, 25 pounds
frequently; standing and walking six hours; sitting six hours in an eight
hour workday. The individual must avoid concentrated exposure to
extreme heat, extreme cold, humidity, fumes, odors, dust, gases, poor
ventilation and all exposure to hazards such as machinery and heights.
Could a person with that RFC perform claimant's past work?
A. Yes, Your Honor.
14
(AR 77). “The ALJ’s RFC assessment bears on [the claimant’s] ability to perform past
relevant work (step four) and her ability to do ‘other work’ ” (step five).” Butler, 353 F.3d at
1000. The ALJ compared Plaintiff’s RFC “with the physical and mental demands” of
her past work and found that the past work “does not require the performance of work-
related activities precluded by the claimant’s residential functional capacity.” (AR 27).
In sum, the record contains substantial evidence to support the ALJ’s finding that
Plaintiff could perform her past relevant sedentary work as a tax preparer, accounts
receivable clerk, and an officer manager (AR 27). And if a claimant “can still do [her]
past relevant work, [the Commissioner] will find that [she is] not disabled.” 20 C.F.R.
§ 404.1520(a) (4)(iv). Because Plaintiff failed to carry her burden “on the first four
steps,” the ALJ correctly found her not disabled. Butler, 353 F.3d at 997; see id. (“If
[as here] the claimant does not satisfy step three, the inquiry proceeds to the fourth
step, which requires her to show that she suffers an impairment that renders her
incapable of performing ‘past relevant work.’”) (citing 20 C.F.R. §§ 404.1520(e),
416.920(e)).
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for judgment of affirmance is
GRANTED, and Plaintiff’s motion for judgment of reversal is DENIED. A
corresponding order will issue separately.
Date: July 3, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
15