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Watzman v. Colvin

United States District Court, D. Maryland, Southern Division

March 23, 2016

HOWARD MARC WATZMAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THOMAS M. DIGIROLAMO UNITED STATES MAGISTRATE JUDGE

Plaintiff Howard Watzman seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying his applications for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 18) and Defendant’s Motion for Summary Judgment (ECF No. 29).[1] Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner’s decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant’s Motion for Summary Judgment (ECF No. 29) is GRANTED, Plaintiff’s Motion for Summary Judgment (ECF No. 18) is DENIED, and the Commissioner’s final decision is AFFIRMED.

I

Background

Plaintiff was born in 1966, has a college education, and previously worked as a medical consultant and physician. R. at 29, 44-45, 49-50. Plaintiff applied for DIB and SSI on October 28, 2010 (with a protective filing date of October 7, 2010), alleging disability beginning on December 1, 2005, due to, among other things, major depressive disorder, attention-deficit hyperactivity disorder, congenital heart disease, hypertension, seizure disorder, GERD, high cholesterol, reactive airway disease, and migraines. R. at 135-50, 159, 170. The Commissioner denied Plaintiff’s applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 64-83, 98-100. On June 12, 2013, ALJ Larry Banks held a hearing in Washington, D.C., at which Plaintiff and a vocational expert (“VE”) testified. R. at 40-63. On July 23, 2013, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of December 1, 2005, through the date of the decision. R. at 17-38. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff’s request for review on September 26, 2014. R. at 1-6, 13-16. The ALJ’s decision thus became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).

On October 31, 2014, Plaintiff filed a complaint in this Court seeking review of the Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.

II

Summary of Evidence

The Court reviews here and in Part VI below Plaintiff’s relevant medical and vocational evidence. After being convicted of a federal felony, but before his date to report to the Bureau of Prisons, Plaintiff attempted suicide on April 2, 2006. R. at 381-469. After his discharge from the hospital over two weeks later, he served his sentence, which ended on August 20, 2010. R. at 46, 168. After his release, Theodore Osuala, M.D., a psychiatrist, began treating Plaintiff on September 21, 2010. R. at 710-11; see R. at 713. Dr. Osuala noted that Plaintiff felt “hopeless and worthless but no clear suicidal ideation. He has no manic anxiety or psychotic symptoms.” R. at 710. Dr. Osuala noted that Plaintiff had seizures in prison. R. at 710. On mental status examination, Dr. Osuala noted that Plaintiff demonstrated good grooming and hygiene but that his mood was depressed and his affect was flat. R. at 711. Plaintiff’s thought content had no homicidal or suicidal ideation. R. at 711. He experienced no auditory or visual hallucinations and no paranoid ideations. R. at 711. Plaintiff’s cognition was fair, and his insight and judgment were good. R. at 711. Dr. Osuala’s assessment thus was that Plaintiff demonstrated depressed mood, fair eye contact, slow speech with low volume, and flat affect, but he was not suicidal or homicidal. R. at 711. Dr. Osuala’s diagnoses included major depressive disorder, cardiac valve disorder, and a GAF rating of 50.[2]

On October 5, 2010, Dr. Osuala completed a “Medical Report Form 402B” (R. at 712-16), in which he stated that Plaintiff’s symptoms included feeling sad every day, difficulty getting out of bed, poor appetite, poor energy and concentration, crying spells, and feeling helpless and worthless. R. at 713. Dr. Osuala assigned a GAF score of 50 and stated that Plaintiff had marked restriction in activities of daily living; marked difficulties in maintaining social functioning; frequent difficulties in maintaining concentration, persistence, or pace; and repeated (three or more) episodes of decompensation, each of extended duration. R. at 715. Finally, Dr. Osuala stated that Plaintiff was prevented from working from October 5, 2010, to October 5, 2012, and that he remained “grossly depressed” despite several medications he was taking. R. at 715-16.

On December 8, 2010, a state agency medical consultant, L. Robbins, M.D., assessed Plaintiff’s physical residual functional capacity (“RFC’). R. at 739-46. Dr. Robbins opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 740. Plaintiff frequently could stoop, kneel, crouch, and crawl. R. at 741. He occasionally could balance and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 741. Although Plaintiff had no manipulative, visual, or communicative limitations, he was to avoid all exposure to hazards such as machinery and heights. R. at 742-43.

On December 20, 2010, another state agency consultant, Frances Breslin, Ph.D., using the psychiatric review technique (“PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff’s mental impairments under Listing 12.04 relating to affective disorders (R. at 751-64). See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. Dr. Breslin opined on a psychiatric review technique form (“PRTF”) that, under paragraph B of Listing 12.04, Plaintiff’s mental impairments caused him to experience (1) moderate restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two episodes of decompensation of extended duration. R. at 761. Dr. Breslin did not find evidence to establish the presence of the criteria under paragraph C of Listing 12.04. R. at 762.

Dr. Breslin noted that Dr. Osuala’s opinion
is based on only 2 weeks of treatment as he first saw [Plaintiff] 9/21/10 and provided the [treating source opinion] 10/5/10. [Medical evidence of record] indicates he has only seen Dr. Osuala twice and Dr. Osuala’s [medical evidence of record] does not support the level of depression endorsed in the [treating source opinion]. As a result it does not meet the qualification of ongoing treatment relationships. Additionally, Dr. Osuala’s [medical evidence of record] does not support the level of depression endorsed in the [treating source opinion]. [T]herefore, [t]he [treating source opinion] is noted, considered a [medical source opinion] and not [treating source opinion], and given some but not controlling weight.

R. at 763. “[M]arked restrictions area not supported by [medical evidence of record] or [activities of daily living].” R. at 763.

Dr. Breslin thus assessed Plaintiff’s mental RFC and opined that he was moderately limited in his ability to (1) maintain attention and concentration for extended periods; (2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (3) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (4) interact appropriately with the general public; (5) accept instructions and to respond appropriately to criticism from supervisors; and to (6) get along with co-workers or peers without distracting them or exhibiting behavioral extremes. R. at 747-48. Plaintiff otherwise was not significantly limited. R. at 747-48. Dr. Breslin thus assessed Plaintiff’s functional capacity:

[Understanding and memory and sustained concentration and persistence]: [Plaintiff] can understand, remember, and follow simple and detailed instructions. [Plaintiff] can attend to tasks for at least 2 hours. [Plaintiff] can work a typical 8hour work day. Maintenance of an acceptable work schedule is not precluded by [Plaintiff’s] psychiatric condition.
[Social interaction]: There should be no intensive interaction with the public and only casual contact with peers. [Plaintiff] can accept direct and non- confrontational correction.
[Adaptation]: [Plaintiff] can adapt to typical work changes, avoid hazards, travel independently, and make future plans.

R. at 749.

On July 19, 2011, Dr. Osuala completed a “Routine Abstract Form-Mental” for the state disability agency (R. at 707-09) in which he remarked that Plaintiff’s mental status examination was noteworthy for suicidal ideation, severely deficient social functioning (because Plaintiff was isolated all the time), and moderately deficient concentration (because Plaintiff struggled with serial sevens). R. at 708. Dr. Osuala assigned a GAF of 40.[3] R. at 707.

On July 19, 2011, Robert Cohen, Ph.D., LCPC, Plaintiff’s therapist, also completed a “Routine Abstract Form-Mental” for the state disability agency (R. at 776-79) in which he stated that Plaintiff’s symptoms included social withdrawal, irritability, severe fatigue, inattention to daily hygiene, difficulty getting out of bed, and social isolation. R. at 777. Dr. Cohen’s mental status examination noted tangential speech, depressed and irritable mood, flat affect, suicidal ideations, thought persecutions about death, moderately deficient insight and judgment, severely deficient social functioning, and moderately deficient concentration. R. at 778. Dr. Cohen assigned a GAF of 37. R. at 777.

On July 26, 2011, Dr. Cohen also provided additional comments to the state disability agency in which he stated that Plaintiff’s symptoms included depressed mood most of the day, anhedonia, decreased appetite, problems sleeping, psychomotor retardation (problems getting out of bed in the morning), extreme fatigue and loss of energy, daily feelings of worthlessness, diminished ability to think and concentrate every day, and recurrent thoughts of death with suicidal ideation (with a serious suicide attempt in 2006). R. at 780-81. Dr. Cohen further stated that the Plaintiff presented as hopeless, helpless, and in emotional pain, with a severely depleted energy level. R. at 781. According to Dr. Cohen, Plaintiff’s medications seemed to help him function minimally, he mentioned death frequently, and he often spoke of his lack of motivation to live. R. at 781.

On August 22, 2011, another state agency consultant, Jeff Harlow, Ph.D., again used the PRT to evaluate Plaintiff’s mental impairments under Listing 12.04. R. at 783-96, 801-14. Dr. Harlow opined on a PRTF that, under paragraph B of Listing 12.04, Plaintiff’s mental impairments caused him to experience (1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 793, 811. Dr. Harlow did not find evidence to establish the presence of the criteria under paragraph C of Listing 12.04. R. at 794, 812. Dr. Harlow thus assessed Plaintiff’s mental RFC and opined that he was moderately limited in his ability to (1) maintain attention and concentration for extended periods; (2) work in coordination with or proximity to others without being distracted by them; (3) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (4) interact appropriately with the general public; (5) accept instructions and to respond appropriately to criticism from supervisors; (6) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and to (7) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. R. at 797-98, 815-16. Plaintiff otherwise was not significantly limited. R. at 797-98, 815-16. In his assessment of Plaintiff’s functional capacity, Dr. Harlow opined that Plaintiff “can perform repetitive work-related activities because these limitations are moderately limited or less.” R. at 799, 817.

On July 17, 2012, Dr. Osuala completed interrogatories (R. at 971-81) on Plaintiff’s behalf, giving a diagnosis of major depressive disorder, recurrent, severe, with psychotic symptoms. R. at 973. Symptoms included constant thoughts of suicide, paranoid thinking, and difficulty concentrating or thinking. R. at 975. Dr. Osuala further stated that Plaintiff’s marked restriction in daily activities; moderate difficulties in maintaining social relationships; often experiencing problems with concentration or pace resulting in failure to complete tasks in a timely manner; and continual episodes of deterioration or decompensation, each of an extended duration, had existed at that severity since September 21, 2010, the date of his initial evaluation. R. at 976-79.

On July 17, 2012, Dr. Osuala also completed a “Medical Assessment of Ability to Do Work-Related Activities (Mental)” (R. at 966-70), opining that Plaintiff’s ability to follow work rules, relate to co-workers, deal with the public, interact with supervisors, and deal with work stresses was poor. R. at 968. Plaintiff’s ability to use judgment, function independently, and maintain attention and concentration was fair. R. at 968. In support of this opinion, Dr. Osuala noted “severe depression with poor concentration & isolative.” R. at 968. Dr. Osuala also opined that Plaintiff’s ability to understand, remember, and carry out complex and detailed instructions was poor and that his ability to understand, remember, and carry out simple job instructions was fair. R. at 968. In support of this opinion, Dr. Osuala noted “poor concentration due to depression.” R. at 969. Dr. Osuala finally opined that Plaintiff’s ability to behave in an emotional stable manner, relate predictably in social situations, and demonstrate reliability was poor, but that his ability to maintain personal appearance was good. R. at 969. Dr. Osuala further found that Plaintiff had severe anhedonia and no drive to do anything because of depression. R. at 969. According to Dr. Osuala, all of Plaintiff’s limitations had existed at that severity since September 21, 2010. R. at 970.

On May 27, 2013, Dr. Cohen wrote a letter summarizing and supporting Plaintiff’s condition, detailing Plaintiff’s symptoms of depressed mood for most of the day on a daily basis, with markedly diminished pleasure in daily activities, weight gain, insomnia, psychomotor retardation and agitation, severe fatigue and loss of energy, feelings of worthlessness, diminished ability to concentrate and make decisions, recurrent thoughts of death, daily problems getting out of bed in morning, occasionally spending most of the day in bed, no meaningful social interactions outside his family, and no friends. R. at 1038. Dr. Cohen reported that there had been “minimal, if any, measurable progress regarding [Plaintiff’s] treatment goals thus far.” R. at 1039. Dr. Cohen assigned a GAF “in the 36-41 range, based upon major impairments in mood, social functioning, recurrent thoughts of death and thinking and not working (lack of a job).” R. at 1039.

On May 27, 2013, Atlener Artis-Trower, M.D., Plaintiff’s current treatment psychiatrist, completed interrogatories (R. at 1251-61) on the Plaintiff’s behalf, listing symptoms including anhedonia, sleep disturbance, decreased energy, difficulty concentrating or thinking, feelings of guilt or worthlessness, and thoughts of suicide. R. at 1254-55. It was the doctor’s opinion that Plaintiff had marked restriction in activities of daily living because of significantly decreased energy, no motivation to care for hygiene, and impaired sleep; marked difficulties in maintaining social relationships because he leaves home only when absolutely necessary; frequent deficiency in concentration or pace resulting in failure to complete tasks in a timely manner because he continued to exhibit trouble with focus and concentration on such tasks as reading and completing paperwork; and repeated (three or more) episodes of deterioration or ...


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