Turner v. ColvinTurner v. Colvin
- Reporters:
- ,
- Before:
- Emmet G. Sullivan
Plaintiff Alfelton Turner seeks reversal of the final decision by Defendant Carolyn W. Colvin1 in her official capacity as Acting Commissioner of Social Security (the “Commissioner“) denying his claim for a period of disability and disability insurance benefits (“DIB“) and for supplemental security income (“SSI“) payments. In the alternative, Plaintiff seeks an order to vacate and remand his case to the Social Security Administration for further proceedings. Pending before the Court are Plaintiff‘s Motion for Judgment of Reversal and Defendant‘s Motion for Judgment of Affirmance. Upon consideration of the parties’ briefs, the administrative record,
I. BACKGROUND
Plaintiff is a resident оf the District of Columbia. Compl. ¶ 2. On December 2, 2008, Plaintiff filed applications for disability and disability insurance benefits (“DIB“) under Title II of the Social Security Act (“Act“), and for supplemental security income (“SSI“) payments under Title XVI of the Act. Administrative Record (“AR“) at 13. He alleges disability beginning October 13, 2005. AR at 161. On his disability report, Plaintiff alleged that depression and mood swings limited his ability to work. AR at 173. His applications were denied both initially, AR at 85-91, and upon reconsideration, AR at 96-102.
Once an individual has had a hearing, he may bring a civil action to review the Commissioner‘s final decision in the district court for the judicial district in which he resides. Social Security Act,
A. Legal Framework
1. Defining Disability and Qualifying for Benefits
To qualify for disability insurance benefits and supplemental security income under Titles II and XVI of the Act, Plaintiff must first establish that he is “disabled.” See
2. Sequential Evaluation Process
The Administrative Law Judge (“ALJ“) must conduct a five-step sequential evaluation to assess a claimant‘s alleged disability. See
First, the ALJ must find that claimant is not presently engaged in “substantial gainful” work.
B. Factual Background
In making its final decision to deny Plaintiff disability benefits, the ALJ relied on the evidence contained in hearing testimony and the evidence that Plaintiff submitted during his application for benefits, including medical records and evaluations from various doctors. See AR at 13-26.
According to the hearing testimony, Plaintiff was fifty-four years old on October 13, 2005, the date that he alleges onset of disability. See id. at 35-36. Plaintiff was covered by disability insurance through December, 31, 2007. Id. at 36. For approximately two years prior, he had been working to set up and move office furniture. Id. at 35. In October 2005, Plaintiff was sent tо prison, id. at 36, for a drug-related violation of his probation, id. at 45-46, 291. After serving two and a half years in prison, he was released in April 2008. Id. at 36, 294-295.
1. Plaintiff‘s medical records
Plaintiff receives mental health treatment through the Veterans Administration. AR at 34. On June 20, 2008, at his first mental health evaluation subsequent to release from prison, he was diagnosed with moderately severe major depressive disorder, cocaine dependence in remission, alcohol abuse, and
Plaintiff briefly attended group therapy, but quit because he did not trust people. AR at 288. He began individual psychotherapy with Raphael Mbachu, M.D. in July 2008. Id. at 287-288. At his first visit, he cried “profusely” and complained of lacking motivation, becoming easily frustrated, being irritable, and having erratic sleep with nightmares riddled with violence. Id. at 288. Dr. Mbachu started Plaintiff on Zoloft for depression, Abilify for his mood, and Benadryl for insomnia. Id. at 289.
On August 20, 2008, Plaintiff reported “doing well” and credited the medication for feeling better. AR at 283. His sleep was “restorative,” he said that he had reduced his alcohol intake to two beers a day, and he reported getting along better with his loved one. Id. at 283. He looked forward to going to a job fair the following day. Id. at 284.
The following month, Plaintiff reported a stable mood, but complained of feeling frustrated for not being able to find a job and feeling financial pressure. AR at 277. He admitted to drinking beer three to four times a week. Id. Dr. Mbachu once again stressed abstinence and suggested alcohol treatment, but Plaintiff declined. Id. By December 22, 2008, Plaintiff reported poor sleep and feeling “in the dumps” for the past two to three weeks. Id. at 274. He denied alcohol use. Id. Dr. Mbachu increased his dosage of Zoloft and Benadryl. Id. at 275.
Hoorie Siddique, Ph.D., conducted a psychological evaluation on behalf of the State agency on January 28, 2009. AR at 237-240. Plaintiff told Dr. Siddique that he consistently had problems getting along with people, particularly with supervisors. Id. at 238. He said he refused all mental health treatment while incarcerated and resumed treatment upon release in 2008. Id. Plaintiff also acknowledged a history of alcohol and crack cocaine abuse and dependence. Id. Based on a range
Gemma Nachbahr, Ph.D., a State agency psychiatric consultant, evaluated Plaintiff on February 9, 2009. Dr. Nachbahr completed a mental residual functional capacity (“RFC“) form and opined that Plaintiff had moderate difficulties in maintaining social functioning and in maintaining concentration. AR at 251. Dr. Nachbahr concluded that Plaintiff appeared mentally capable of performing work-related activities with sustained abstinence from drugs and alcohol. Id. at 257.
At his next visit with Dr. Mbachu on February 10, 2009, Plaintiff reported “doing okay,” but was bothered by not having a job or money. AR at 270. He reported feeling better in response to the increase in medication. Id.
On April 24, 2009, Plaintiff asked to participate in “CWT,” a job training and matching program for veterans, but was told by his nursе practitioner, Marguerite McGarrah, N.P., that he would first have to complete a substance abuse rehabilitation
Patricia Cott., Ph.D., a State agency psychologist, evaluated Plaintiff on June 1, 2009 and found that with full and sustained abstinence from substances, AR at 321, he would only have mild limitations in daily activities, social functioning, and concentration, id. at 319.
On June 25, 2009, Plaintiff reported to Dr. Mbachu that he was “holding on” and still had no job. AR at 340. He had run out of medication the month before, and was feeling paranoid. Id. Three months later, he reported that things were slow without a job or income, and that he occasionally found tеmporary jobs helping people move. Id. at 336. He said that he drank sparingly because he could not afford to drink. Id. Dr. Mbachu encouraged Plaintiff to look for jobs at home improvement stores and food stores as a stocker. Id. at 337. On November 3, 2009, Plaintiff reported “doing well” despite financial difficulties. Id. at 332. He continued to look for a job, continued to drink alcohol once a week, and took his medication without side effects. Id. Dr. Mbachu encouraged him to stop using alcohol and to monitor his anger. Id. at 333.
At the time of his hearing before the ALJ on October 13, 2010, Plaintiff was fifty-nine years old. See AR at 35. Plaintiff has an associate degree in criminal administration, id. at 34, and his past relevant work includes jobs as a library technician, day laborer, and department store worker. Id. at 53, 219.
At the hearing, the ALJ asked the Vocational Expert what kind of work a hypothetical individual with Plaintiff‘s RFC and limitations could perform. The VE testified that such an individual could perform past relevant work as a department store worker and other “medium, unskilled” jobs, which include work as a general laundry laborer, kitchen helper, and hand packager. AR at 54-55. The VE testified that approximately 2,000 general laundry laborer jobs, 7,500 kitchen helper jobs, and 500 hand packager jobs existed in the metropolitan Washington, D.C. area. Id. at 55. The VE also said, however, that an individual would not be a competitive candidate for these jobs if his impairment or treatment caused him to be absent from work for two days per month. Id.
3. The ALJ‘s sequential evaluation and findings
The ALJ found at step one of the sequential evaluation that Plaintiff had not engaged in substantial gainful work since October 13, 2005. AR at 15. At step two, the ALJ found that
At step four, the ALJ found that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. Sections
The ALJ made three specific findings regarding Plaintiff‘s RFC. First, the ALJ found that Plaintiff has mental limitations, but can be expected or required to understand, remember, and execute commands with simple instructions. AR at 17. Second, the ALJ found that Plaintiff is seriously limited in the ability to maintain attention for up to two-hour segments, but not precluded from doing so. Id. Third, the ALJ found that Plaintiff has serious limitations in the ability to perform at a consistent pace without an unreasonable number or length of rest periods, but is not precluded from doing so. Id.
II. STANDARD OF REVIEW
Judicial review in this Court is statutorily limited to whether the Commissioner, acting through the ALJ, correctly applied the relevant law, and whether there is substantial evidence to support the Commissioner‘s final decision that Mr. Turner was not disabled. See
III. DISCUSSION
Plaintiff does not dispute the ALJ‘s conclusions under the first three steps of its sequential evaluation. Pl.‘s Mem. Supp. Mot. J. Reversal at 13, ECF No. 9. He does, however, dispute the ALJ‘s conclusion at step four that Plaintiff can perform past relevant work, and the ALJ‘s conclusion at step five that Plaintiff can adjust to other available work. Id. at 14.
Plaintiff‘s challenge to these two conclusions rests upon the argument that the ALJ made three errors in evaluating Dr. Mbachu‘s opinion evidence. First, Plaintiff argues that the ALJ should have given controlling weight to the entirety of Dr. Mbachu‘s opinion rather than rejecting the doctor‘s opinion that Plaintiff would miss two days of work each month due to his impairments and treatment. Pl.‘s Mem. at 14. Second, he argues that the ALJ should have given more weight to Dr. Mbachu‘s opinion that Plaintiff was seriously limited in two areas of basic work function. Id. at 15. Third, Plaintiff argues that had the ALJ done these two things (one: given controlling weight
A. Substantial evidence supports the ALJ‘s decision not to give controlling weight to Dr. Mbachu‘s medical opinion regarding two days’ absence per month
Plaintiff contends that the ALJ erroneously rejected the portion of Dr. Mbachu‘s opinion that stated Plaintiff would miss two days of work each month due to his impairments and treatment. Id. at 14. Plaintiff claims that the ALJ had to give this opinion controlling weight because Dr. Mbachu is Plaintiff‘s “treating source.” Pl.‘s Mem. at 15. A “treating source” is a psychologist or physician who has provided medical treatment or evaluation to Plaintiff and has an ongoing relationship with him. See
The Commissioner responds that it (1) it correctly declined to give Dr. Mbachu‘s entire opinion controlling weight, Def.‘s Mem. at 11-12, and that (2) SSR 96-2p does not prohibit the ALJ from crediting some parts of a treating source‘s opinion and rejecting other portions.3 Id. at 13. The Commissioner‘s argument is persuasive.
1. Relevant Law
“Because a claimant‘s treating physicians have great fаmiliarity with his condition, their reports must be accorded substantial weight.” Butler, 353 F.3d at 1003. (citation and internal quotation omitted). “A treating physician‘s [opinion] is binding on the fact-finder unless contradicted by substantial evidence.” Id. (citation and internal quotation omitted). The
2. Discussion
Dr. Mbachu‘s opinion that Plaintiff would require two days’ absence from work each month is an important component of Plaintiff‘s disability сlaim, because according to the Vocational Expert, an individual who is absent that frequently is not competitive for past relevant work. See AR at 55. In rejecting this opinion (i.e., in giving it no weight), the ALJ specifically explains that the opinion is contradicted by the “relatively mild symptoms reported” by Plaintiff and the “efficacy of psychotropic medication.” See id. at 24. Contrary to Plaintiff‘s assertion, the ALJ did not merely offer a “cursory statement,” Pl.‘s Mem. at 17, that lacked the requisite specificity, Pl.‘s Resp. at 8. In rejecting Dr. Mbachu‘s two-
a. The credibility of Plaintiff‘s statements regarding the severity of his impairments
The ALJ found that:
There are many troubling issues with respect to the credibility of the claimant‘s statements regarding the severity of his physical and mental limitations. Of great significance, the undersigned notes that the claimant testified that he refused all treatment while he was incarcerated from October 2005 through April 2008. The undersigned acknowledges that this refusal could be characterized as a symptom of the claimant‘s mental illness. However, the record is devoid of objective clinical evidence to support the claimant‘s statements regarding the severity of his physical and mental limitations during this time, creating a very thorny and insurmountable problem for one alleging onset of disability in October 2005. That the claimant could voluntarily decline all treatment without suffering any apparent limitations, repercussions, or consequences brings into question the credibility of his statements regarding the severity of his physical and mental impairments.
AR at 19.
As noted earlier, to be considered disabled under the Act for the alleged period of disability from October 13, 2005 to date, Plaintiff‘s impairments must be severe enough to render
The ALJ noted that the record was “devoid of objective clinical evidence” to support Plaintiff‘s statements regarding the severity of his limitations between October 2005 and April 2008. AR at 19. But unlike in Sloan, he does not discredit Plaintiff‘s statements based solely on the lack of such
In Brown, the ALJ acknowledged the plaintiff‘s history of depression, but noted that the plaintiff told her doctor that she did not need to see a psychiatrist. 408 F. Supp. 2d at 37. The ALJ also noted that despite the plaintiff‘s complaints regarding the severity of her symptoms, she was still able to grocery shop and do other household activities associated with the housekeeping work that the ALJ determined she could do. Id. The Court in Brown decided that the ALJ properly found that the plaintiff‘s alleged symptoms were “not very credible” because the ALJ had made this finding based on an analysis of the record. Id.
Similarly, the record here also supports the ALJ‘s finding that there are “troubling issues,” AR at 19, with Plaintiff‘s credibility. Like the plaintiff in Brown, Plaintiff here also voluntarily refused medical treatment for his mental illness for part of the period in which he alleges disability. See id. The ALJ acknоwledges that refusal of treatment itself could be a symptom of mental illness. Id. But like the plaintiff in Brown, here, Plaintiff‘s own actions during the period of
b. Evidence contained in Dr. Mbachu‘s own treatment notes
The ALJ explained that Dr. Mbachu‘s treatment notes do not support Dr. Mbachu‘s opinion that Plaintiff would require two days of absence from work each month. Rather, Dr. Mbachu‘s notes reflect the “efficacy of psychotropic medication.” See AR
The record also provides substantial evidence to support the ALJ‘s claim that isolated incidents recorded in Dr. Mbachu‘s treatment notes in December 2008, June 2009, and June 2010 did not indicate a worsening of symptoms. In December 2008, Plaintiff had only felt “in the dumps” for the two to three weeks prior, Def.‘s Mem. at 13-14 (citing AR at 274), following months of effective treatment during which Dr. Mbachu reported that Plaintiff was “doing well,” AR at 283, “still stabilizing” on medication, AR at 280, and had a “stable mood,” AR at 277. Plaintiff reported feeling paranoid in June 2009 after he had run out of medication, Def.‘s Mem. at 14 (citing AR at 340), but no longer reported paranoia after Dr. Mbachu renewed his prescription, see generally AR 323-339, 395-440. Also, Plaintiff in Decеmber 2010 felt “frustrated and worthless [because] he [was] not able to secure a job,” not because treatment was ineffective. Id. at 436 (noting that Plaintiff
c. Opinion evidence from other doctors
The ALJ also explained that Dr. Mbachu‘s two days of absence opinion is inconsistent with the opinions of other doctors who evaluated Plaintiff. In analyzing the record, the ALJ accorded substantial weight to the opinion of Dr. Nachbahr, a State agency psychiatric consultant, who concluded that Plaintiff appeared mentally capable of performing work-related activities with sustained abstinence from drugs and alcohol. AR at 24. The ALJ found thаt Dr. Nachbahr‘s opinion is consistent with those of other doctors and medical practitioners who had evaluated Plaintiff. Id. First, the assessment of Dr. Cott, a State agency psychologist, generally supports Dr. Nachbahr‘s opinion. Id.; see AR at 319, 321 (finding that Plaintiff would only have mild limitations in daily activities, social functioning, and concentration with full and sustained abstinence from substances). Dr. Nachbahr‘s opinion is also consistent with the evaluation of Dr. Siddique, a psychologist that the State agency consulted. Id. at 24; see AR at 239 (finding that Plaintiff‘s cognitive functioning only had “mild
Plaintiff claims that “[t]he only evidence inconsistent with Dr. Mbachu[‘s] is that which was provided [by] State Medical Consultants.” Pl.‘s Mem. at 17. But this claim is without merit. Contrary to Plaintiff‘s claim, the record shows that Dr. Mbachu‘s own treatment records are consistent with the opinions of Dr. Nachbahr, Dr. Cott, and Nurse Practitioner McGarrah that Plaintiff could work with sustained abstinence from alcohol. Dr. Mbachu‘s treatment notes indicate that he had advised Plaintiff to abstain from alcohol use in September 2008, AR at 280, October 2008, id. at 277, and as late as September 2010, id. at 409. He also opined on Plaintiff‘s RFC form that alcohol contributed to Plaintiff‘s mental limitations because it “may impair memory and lead to mistakes.” Id. at 357. Moreover, in September 2009, Dr. Mbachu had encouraged Plaintiff to look for jobs at home imрrovement stores and food stores as a stocker. Id. at 337. Accordingly, it appears that not even Dr.
Based on the foregoing analysis, the ALJ rejected Dr. Mbachu‘s opinion that Plaintiff required two days of absence a month. The ALJ was “not persuaded that Plaintiff‘s treatment could not be managed to accommodate his work schedule and minimize treatment absences.” AR at 24. Because the ALJ provided good reasons with sufficient specificity for rejecting Dr. Mbachu‘s opinion that Plaintiff requires two days of absence each month, this Court finds that substantial evidence supports the ALJ‘s decision to do so.
B. Substantial evidence supports the ALJ‘s RFC determination that Plaintiff had serious limitations, but was not precluded from work
Plaintiff‘s second argument with respect to the ALJ‘s evaluation of Dr. Mbachu‘s opinion evidence is that had the ALJ given proper weight to Plaintiff‘s “serious limitations” in his RFC finding, he would have found him disabled under the Act. Pl.‘s Mem. at 18; Pl.‘s Resp. at 7. The ALJ found that Plaintiff was “seriously limited, but not precluded” in two categories of basic work function: (1) his ability to maintain
Plaintiff claims that the ALJ failed to analyze his two serious limitations under the Social Security Administration‘s Program Operations Manual System (“POMS“). Pl.‘s Mem. at 18; Pl.‘s Resp. at 6-7. POMS is an internal handbоok for Social Security Administration (“SSA“) employees to refer to when processing Social Security benefits. See SSA‘s Program Operations Manual System Home, https://secure.ssa.gov/apps10/ (last visited August 21, 2013). According to POMS, a “substantial loss of ability” in one of the following four basic work categories “would justify a finding of inability to perform other [unskilled] work even for persons with favorable age, education, and work experience:”
- understand, carry out, and remember simple instructions;
- make judgments that are commensurate with the functions of unskilled work, i.e., simple work-related decisions.
- respond appropriately to supervision, coworkers and work situations; and
- deal with changes in a routine work setting.
POMS Section: DI 25020.010, https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010 (last visited August 21, 2013). According to POMS, if Plaintiff indeed suffered a “substantial loss of ability,” he would
1. Relevant Law
POMS is an agency interpretation that has persuasive force but neither binds this court or the ALJ. See Power v. Barnhart, 292 F.3d 781, 786 (D.C. Cir. 2002) (“[W]e grant an agency‘s interpretation only so much deference as its persuasiveness warrants.“) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Parties agree that POMS is not binding upon the ALJ. Def.‘s Mem. at 15; Pl.‘s Resp. at 6. Therefore, the ALJ has the discretion to determine whether or not Plaintiff‘s limitations render him unable to perform work. The ALJ‘s determination must be supported by “substantial evidence.” See Butler, 353 F.3d at 999 (“[W]e assess only whether the ALJ‘s finding that [a claimant] is not [disabled] is based on substantial evidence and a correct application of the law“).
2. Discussion
Upon review of the administrative record, the Court finds that there is substantial evidence to support the ALJ‘s RFC determination at step four that Plaintiff‘s limitations do not render him unable to perform other work. The ALJ first claims
This Circuit has not opined on the significance of the phrase “seriously limited, but not precluded” in a disability evaluation, but three Circuits have. See Colvin v. Barnhart, 475 F.3d 727, 731 (6th Cir. 2007) (“seriously limited, but not precluded” means that is able to perform to a limited degree in a vocational category); see also Cantrell v. Apfel, 231 F.3d 1104, 1107-1108 (finding that the term “fair” meant “seriously limited, but not precluded,” which “does not, on its own, declare that the claimant cannot return to past work . . . [but] requires a review of the entire record in order to judge whether the balance tips toward functional ability or toward
But, as the Sixth Circuit held in Colvin,
[Plaintiff‘s] interpretation cannot stand. The plain meaning of “seriously limited but not precluded” is that one is not precluded from performing in that area. It defies logic to assert that a finding of “not precluded” actually means that one is precluded. Further, the medical assessment form used to evaluate Colvin‘s abilities also contained the “none” option, which is defined as “[n]o useful ability to function in this area.”
475 F.3d at 731. Colvin‘s plain meaning analysis of the phrase is particularly instructive here, where the relevant facts are similar to this case, where this Circuit offers no relevant guidance, and where neither party has cited case law to support their respective positions.
The Commissioner further points out that the other doctors who assessed Plaintiff‘s mental limitations also determined that Plaintiff could meet the demands of competitive employment. Def.‘s Mem. at 16. The ALJ noted that every such doctor opined that Plaintiff had the ability to perform basic work-related activities with sustained abstinence from drugs and alcohol. See AR at 24. The Court finds that the record supports this characterization of Plaintiff‘s abilities. See id. at 239 (finding by Dr. Siddique that “Mr. Turner‘s pattern of performance showed indications of mild relative deterioration or impairment in some of his cognitive abilities . . . but much of his cognitive functioning remains intact at this time“); see also AR at 251 (finding by Dr. Nachbahr that all of Plaintiff‘s
C. Substantial evidence supports the ALJ‘s vocational findings that Plaintiff could perform past relevant work and other work that exists in the economy
The ALJ relied on the testimony of a VE to determine at step four that Plaintiff could perform past relevant work as a department store worker, and at step five that he could do other “medium, unskilled” jobs that exists in sufficient numbers in the national economy. AR at 24-25; see AR at 54-55. Plaintiff‘s third and final claim is that the ALJ erred at both steps. Pl.‘s Mem. at 19; Pl.‘s Resp. at 9. He argues that had the ALJ correctly accepted Dr. Mbachu‘s opinion regarding Plaintiff‘s absence from work and correctly weighed Plaintiff‘s serious work limitations, the ALJ would have found Plaintiff unable to perform either kind of work. Id. Because the ALJ‘s
1. Relevant Law
The ALJ may consult a VE to determine whether Plaintiff‘s work skills can be used to do past relevant work or other work that exists in the national economy.
A VE‘s testimony concerning a plaintiff‘s ability to work may constitute substantial evidence where the testimony is given in response to a hypothetical question that accurately sets forth the plaintiff‘s physical and mental impairments. Colvin, 475 F.3d at 732; see Kearse v. Massanari, 73 F. App‘x 601, 604 (4th Cir. 2003) (affirming denial of benefits where ALJ‘s
2. Discussion
Here, the hypothetical questions that the ALJ asked the VE reflected the serious limitations in maintaining attention and work pace that the ALJ in step four found Plaintiff to suffer from. See AR at 53-54. The ALJ‘s hypothetical questions also reflected Plaintiff‘s RFC, age, education, and work experience. See id. In response to the ALJ‘s questions, the VE testified that an individual with Plaintiff‘s serious limitations could perform his past work as a department store worker. Id. at 54. He also testified that such an individual with Plaintiff‘s RFC, age, education, and work experience could perform other “medium, unskilled” jobs, which include work as a general laundry laborer, kitchen helper, and hand packager. Id. at 54-55. The VE further testified that such work exists in significant numbers in the regional and national economy. Id. Based on the
The ALJ also asked the VE whether a hypothetical individual whose impairments and treatment would require him to be absent twice a month would be a competitive candidate for the jobs he could perform. The VE testified that such an individual would not be a competitive candidate. AR at 55. The ALJ here also accurately described Dr. Mbachu‘s opinion regarding Plaintiff‘s expected absence from work, so there is no question as to the validity of the VE‘s testimony in reliance on this opinion. See Butler, 353 F.3d at 1005. But, as discussed above, substantial evidence supports the ALJ‘s decision to reject Dr. Mbachu‘s
IV. CONCLUSION
Based on the foregoing review of the administrative record and relevant law, the Court finds that the Administrative Law Judge applied the correct legal standards when he denied Plaintiff‘s claim for disability insurance benefits and supplemental security income and that the ALJ‘s conclusions are supported by substantial evidence. Accordingly, Plaintiff‘s Motion for Judgment of Reversal is DENIED and Defendant‘s Motion for Judgment of Affirmance is GRANTED. An appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
August 29, 2013