Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lumpkin v. Beryhill

United States District Court, D. Maine

January 31, 2018

ASHLEY L. LUMPKIN, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III United States Magistrate Judge

         This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the basis that the ALJ erred in his assessment of five separate medical opinions submitted in her case as well as statements provided by her mother. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 13) at 4-15. I find no error, and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through September 30, 2017, Finding 1, Record at 23; that she had severe impairments of degenerative disc disease, fibromyalgia, headaches, a mood disorder, and an anxiety disorder, Finding 3, id. at 23; that she had the residual functional capacity (“RFC”) to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that she was able to lift and carry 25 pounds frequently and 50 pounds occasionally, sit for six hours in an eight-hour workday, stand or walk for six hours in an eight-hour workday, frequently climb ramps and stairs, and occasionally stoop, crouch, and climb ladders, ropes, and scaffolds, and retained the ability, on a sustained competitive basis, to understand and remember simple tasks, use judgment in making simple work-related decisions, respond appropriately to supervisors, coworkers, and usual work situations not involving the public, and adapt to changes in ordinary work settings, Finding 5, id. at 26-27; that, considering her age (29 years old, defined as a younger individual, on her alleged, amended disability onset date, April 12, 2013), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 33-34; and that she, therefore, had not been disabled from April 12, 2013, through the date of the decision, January 26, 2016, Finding 11, id. at 34-35. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         The plaintiff seeks remand on the basis of challenges to the ALJ's assessment of the opinions of four agency examining consultants, Roger Ginn, Ph.D., Edward Quinn, Ph.D., Family Nurse Practitioner (“F.N.P.”) Stacie Kunas, and Pamela J. Wansker, D.O., the opinion of treating physician Peggy Wyman, M.D., and statements of the plaintiff's mother, Tammy Cook. See Statement of Errors at 4-15.[2] For the reasons that follow, I find no error, agreeing with the commissioner that the plaintiff's arguments as a whole amount to an impermissible invitation to the court to reweigh the evidence before the ALJ. See Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 14) at 5, 8; Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (“[T]he resolution of conflicts in the evidence is for the [commissioner], not the courts.”).

         A. Dr. Ginn

         Dr. Ginn examined the plaintiff on June 18, 2012, diagnosing her with bipolar disorder and generalized anxiety disorder with moderate agoraphobia, describing her as “a woman with some significant problems with anxiety as well as bipolar disorder[, ]” and stating that he did “not think she c[ould] get out of the house on a regular and consistent basis to be able to work” at that time. Record at 1124. He explained, “I think her anxiety level is too high and there are still issues with periodic manic episodes.” Id.

         The ALJ accorded the Ginn opinion little weight, explaining:

Dr. Ginn examined the [plaintiff] on one occasion, and the degree of limitations cited is not supported and appears to be based in large part on the [plaintiff's] subjective allegations. This opinion is also inconsistent with Dr. Ginn's statement earlier in the report that the [plaintiff] was only “mildly” anxious, and the record as a whole, including the State agency assessments, and the [plaintiff's] reported activities of daily living.

Id. at 31 (citation omitted).

         The plaintiff faults this assessment on the bases that the ALJ, as a layperson, placed undue weight on Dr. Ginn's observation that she appeared “mildly anxious[, ]” ignoring the totality of his expert findings on examination, and wrongly rejected his opinion in part because of his status as a onetime examining consultant, a rationale that runs “counter to the stated purpose of sending a claimant to a consultative exam.” Statement of Errors at 5-6. She adds that the ALJ's reliance on the latter rationale was further weakened by his selectivity in its use: he accorded most of Dr. Quinn's opinion great weight although Dr. Quinn, too, was an agency examining consultant. See id. at 6. She argues that, pursuant to Social Security Ruling 96-2p (“SSR 96-2p”), the ALJ should have given the Ginn opinion substantial or great weight. See id.

         As the commissioner rejoins, see Opposition at 6, SSR 96-2p is inapposite because it pertains to assessment of the opinions of treating, rather than examining, sources, see SSR 96-2p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 110. “A onetime examining consultant is not a ‘treating source' and therefore is not subject to the ‘treating source' rule, pursuant to which a medical opinion may be rejected only for good reasons.” Smythe v. Astrue, No. 2:10-cv-251-GZS, 2011 WL 2580650, at *5 (D. Me. June 28, 2011) (rec. dec., aff'd July 21, 2011) (citing 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2), since redesignated as 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2)). Indeed, there is authority that “failure by the ALJ to articulate or explain the weight given to the reports of the examining or consultative physicians can be harmless error.” Id. (citation and internal quotation marks omitted).[3]

         In any event, as the commissioner argues, see Opposition at 7, even if the treating source rule applied, the ALJ supplied good reasons for his attribution of little weight to the Ginn opinion, observing that the cited limitations appeared to based in large part on the plaintiff's subjective allegations and were inconsistent with the record as a whole, including the opinions of agency nonexamining consultants and the plaintiff's activities of daily living. See Record at 31; Campagna v. Berryhill, No. 2:16-cv-00521-JDL, 2017 WL 5037463, at *4 (D. Me. Nov. 3, 2017) (rec. dec., aff'd Jan. 2, 2018) (“lack of support and inconsistency with other substantial evidence of record” among good reasons for affording treating source opinion little or no weight); Day v. Berryhill, No. 1:16-cv-00593-JAW, 2017 WL 5037454, at *5 (D. Me. Nov. 2, 2017) (rec. dec., aff'd Nov. 20, 2017) (“inconsistency of treating source's opinion with claimant's activity level” and “reliance on a claimant's subjective allegations of pain” among good reasons for affording a treating source opinion little or no weight).

         The ALJ did not err in also factoring in Dr. Ginn's status as a onetime examining consultant: an opinion author's relationship with a claimant, if any, is among several factors recognized as relevant to the evaluation of the opinion. See 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). There was no fatal inconsistency in his decision to give great weight to much of the Quinn opinion: while Dr. Quinn also was an agency examining consultant, the ALJ explained that he found those portions of his opinion generally supported by his findings and consistent with agency nonexamining consultants' assessments. See Record at 32. As the commissioner observes, see Opposition at 6 n.5, an ALJ is not obliged to slavishly reference every relevant factor set forth in 20 C.F.R. §§ 404.1527(c) and 416.927(c) in weighing opinion evidence, see, e.g., Golfieri v. Barnhart, No. 06-14-B-W, 2006 WL 3531624, at *4 (D. Me. Dec. 6, 2006) (rec. dec., aff'd Dec. 29, 2006).

         Nor, finally, did the ALJ err in perceiving a clash between Dr. Ginn's finding on examination of mild anxiety and his conclusion that the plaintiff's high anxiety, as well as bipolar symptoms, prevented her from sustaining work, particularly in view of his further finding that Dr. Ginn relied in large part on the plaintiff's subjective allegations in forming his opinion.

         B. Dr. Quinn

         Dr. Quinn examined the plaintiff on July 28, 2015, diagnosing her with generalized anxiety disorder, panic disorder without agoraphobia, bipolar I disorder, most recent episode depressed, moderate, and post-traumatic stress disorder, and concluding:

[The plaintiff] should be able to follow work rules. She may have difficulties relating to others due to her anxiety and depression. She should be able to use appropriate gross judgment. She may have some difficulties with stressors. She should be able to function independently and difficulties with attention, concentration, persistence, pace, and memory were not observed beyond cognitive limitations. She should be able to complete at least simple job instructions if not more complex and detailed job instructions based on her cognitive abilities; however, her emotional anxiety may impact her ability to function in occupational settings. She should be able to maintain personal appearance. She may have some difficulties with emotional stability. She may have some difficulties in social settings. She may have some issues with reliability.

         Record at 2458-59. On the same date, he completed a form addressing the plaintiff's ability to perform mental work tasks in which he indicated that she had a range of no to mild limitations in her ability to understand, remember, and carry out simple instructions and make judgments on simple work-related decisions and mild to moderate limitations in her ability to interact appropriately with the public, supervisors, and co-workers, and that she “may have issues relating to others due to her anxiety and depression.” Id. at 2461-62. He elaborated: “She appeared quite anxious during the interview; she would have difficulties functioning in a job setting with the level of anxiety observed.” Id. at 2462.

         The ALJ gave the Quinn opinion a mix of great and little weight, explaining:

The degree of limitations cited is generally supported by Dr. Quinn's mental status examination findings and consistent with the State agency assessments, and has been given great weight. However, Dr. Quinn did not quantify the degree of difficulty functioning in a job setting the [plaintiff] would have, and this statement is inconsistent with multiple observations by other examiners that the [plaintiff] is ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.