Harris v. Astrue
Filing
19
MEMORANDUM OPINION. Signed by Magistrate Judge Susan K. Gauvey on 12/16/13. (dass, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
101 WEST LOMBARD STREET
SUSAN K. GAUVEY
BALTIMORE, MARYLAND 21201
U.S. MAGISTRATE JUDGE
MDD_skgchambers@mdd.uscourts.gov
(410) 962-4953
(410) 962-2985 - Fax
December 16, 2013
Arjun K. Murahari, Esq.
Mignini, Raab and Demuth LLP
429 S. Main Street
Bel Air, MD 21014
Frederick A. Raab, Esq.
Mignini and Raab LLP
606 Baltimore Avenue, Suite 100
Towson, MD 21211
Stacey Irene Cole, Esq.
Special Assistant United States Attorney
Social Security Administration
Altmeyer Building
6401 Security Boulevard, Room 617
Baltimore, MD 21235
Re:
Michelle Yuvette Harris v. Carolyn W. Colvin,
Commissioner, Social Security,
Case No. SKG-12-3584
Dear Counsel,
Plaintiff, Michelle Harris, by her attorneys, Arjun K.
Murahari and Frederick A. Raab, filed this action seeking
judicial review, pursuant to 42 U.S.C. § 405(g), of the final
decision of the Commissioner of the Social Security
Administration (“the Commissioner”), who denied plaintiff’s
claim for Disability Insurance Benefits (“DIB”) under Title II
1
of the Social Security Act (“the Act”) and Supplemental Security
Income (“SSI”) under Title XVI of the Act. 42 U.S.C. § 405(g)
and 42 U.S.C. § 1383b(a).
This case has been referred to the
undersigned magistrate judge by consent of the parties pursuant
to 28 U.S.C. § 636(c) and Local Rule 301. (ECF No. 5; ECF No. 7;
ECF No. 8).
Currently pending before the Court are cross motions for
summary judgment. (ECF No. 15; ECF No. 17).
necessary.
Local Rule 105.6.
No hearing is
For the reasons that follow, the
Court hereby DENIES plaintiff’s motion for summary judgment and
GRANTS defendant’s motion for summary judgment.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on March 5, 2009
(R. 154-167) alleging a period of disability beginning June 20,
2006 due to uterine fibroid tumors.
(R. 188).
Plaintiff’s
applications were denied initially on May 8, 2009 (R. 81) and on
reconsideration on January 11, 2010.
(R. 89; R. 91).
The
plaintiff had an administrative hearing on November 19, 2010.
(R. 35-76).
The ALJ issued a decision on February 9, 2011,
finding that plaintiff was not disabled.
(R. 15-34).
The
Appeals Council denied plaintiff’s request for review on October
24, 2012.
(R. 1-5).
The ALJ’s opinion is therefore the final
decision of the agency.
Plaintiff filed this action seeking
2
review of that final decision pursuant to 42 U.S.C. § 405 (g) on
December 6, 2012.
(ECF No. 1).
II.
FACTUAL BACKGROUND
The Court has reviewed the Commissioner’s Statement of
Facts and, finding that it accurately represents the record,
hereby adopts it.
(ECF No. 17-1).
III. ALJ’S FINDINGS
In evaluating plaintiff’s claim for disability insurance
benefits, the ALJ was required to consider all of the evidence
in the record and to follow the sequential five-step evaluation
process for determining disability, set forth in 20 C.F.R §
416.920(a).1
If the agency can make a disability determination
at any point in the sequential analysis, it does not review the
claim further. 20 C.F.R. § 1520(a).
After proceeding through
all five steps, the ALJ in this case concluded that plaintiff
was not disabled as defined by the Act.
The first step requires plaintiff to prove that she is not
engaged in “substantial gainful activity.”2
20 C.F.R. §
1
Disability is defined in the Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or has lasted
or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 416(i)(1)(A) (2004).
2
Substantial gainful activity is defined as “work activity that is both
substantial and gainful.” 20 C.F.R. § 416.972. Work activity is substantial
if it involves doing significant physical or mental activities and even if it
is part-time or if plaintiff is doing less, being paid less, or has fewer
responsibilities than when he worked before. 20 C.F.R. § 416.972(b).
Substantial gainful activity does not include activities such as household
3
416.920(a)(4)(I).
If the ALJ finds that plaintiff is engaged in
substantial gainful activity, plaintiff will not be considered
disabled.
Id.
The ALJ in the present case found that plaintiff
did not engage in substantial gainful activity since the alleged
onset date of her period of disability, June 20, 2006.
(R. 20).
At the second step, the ALJ must determine whether
plaintiff has a severe, medically determinable impairment or a
combination of impairments that limit plaintiff’s ability to
perform basic work activities.
20 C.F.R. §§ 404.1520(c),
416.920(c); see also 20 C.F.R. §§ 404.1521, 416.921.
There is
also a durational requirement that plaintiff’s impairment last
or be expected to last for at least 12 months.
416.909.
20 C.F.R. §
Here, the ALJ found that through the date last
insured, plaintiff had the following severe impairments: morbid
obesity, status post broken right ankle, and depression.
(R.
20).
At step three, the ALJ considers whether plaintiff’s
impairments, either individually or in combination, meet or
equal an impairment enumerated in the “Listing of Impairments”
(“LOI”) in 20 C.F.R. § 404, Subpart P, Appendix 1.
416.920(a)(4)(iii).
20 C.F.R. §
Here, the ALJ found that plaintiff did not
have an impairment that meets or medically equals one of the
listed impairments.
(R. 21).
tasks, taking care of oneself, social programs, or therapy.
416.972(c).
4
20 C.F.R. §
Before an ALJ advances to the fourth step, she must assess
plaintiff’s “residual functional capacity” (“RFC”), which is
then used at the fourth and fifth steps.
404.1520(a)(4)(e).
20 C.F.R. §
RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis.
SSR 96-8p.
The ALJ must consider even those impairments that
are not “severe.”
20 C.F.R. § 404.1520(a)(2).
In determining a plaintiff’s RFC, ALJs must evaluate the
plaintiff’s subjective symptoms (e.g., allegations of pain)
using a two-part test.
Craig v. Chater, 76 F.3d 585, 594 (4th
Cir. 1996); 20 C.F.R. § 404.152.
First, the ALJ must determine
whether objective evidence shows the existence of a medical
impairment that could reasonably be expected to produce the
actual alleged symptoms.
20 C.F.R. § 404.1529(b).
Once the
claimant makes that threshold showing, the ALJ must evaluate the
extent to which the symptoms limit the claimant's capacity to
work.
20 C.F.R. § 404.1529(c)(1).
At this second stage, the
ALJ must consider all the available evidence, including medical
history, objective medical evidence, and statements by the
claimant.
20 C.F.R. § 404.1529(c).
The ALJ must assess the
credibility of the claimant's statements, as symptoms can
sometimes manifest at a greater level of severity of impairment
than is shown by solely objective medical evidence.
5
SSR 96-7p,
1996 SSR LEXIS 4.
To assess credibility, the ALJ should
consider factors such as the claimant’s daily activities,
treatments she has received for her symptoms, medications, and
any other factors contributing to functional limitations. Id.
Here, the ALJ found that plaintiff had the residual
functional capacity to perform sedentary work as defined in 20
CFR 404.1567(a) and 416.967(a), restricted to sitting for six
hours in an eight hour workday and standing or walking for two
hours in an eight hour workday.
(R. 24).
The ALJ found that
plaintiff is limited to work with only occasional balancing,
stooping, kneeling, crouching, crawling, or stair/ramp climbing
requirements; plaintiff may never climb ladders, ropes, or
scaffolds; and plaintiff is to avoid concentrated exposure to
temperature extremes, hazards, and pulmonary irritants.
The ALJ also noted that plaintiff ambulates with a cane.
(Id.).
(Id.).
At the fourth step, the ALJ must consider whether plaintiff
retains the RFC necessary to perform past relevant work.
C.F.R. §§ 404.1520(e), 416.920(e).
20
Here, the ALJ noted that
past work as a fast food worker would exceed plaintiff’s current
residual functional capacity.
(R. 28).
Therefore, plaintiff
was unable to perform any of her past relevant work.
(Id.).
Where, as here, plaintiff is unable to resume her past
relevant work, the ALJ must proceed to the fifth and final step.
This step requires consideration of whether, in light of
6
vocational factors such as age, education, work experience, and
RFC, plaintiff is capable of other work in the national economy.
See 20 C.F.R. §§ 404.1520(f), 416.920(f).
At this step, the
burden of proof shifts to the agency to establish that plaintiff
retains the RFC to engage in an alternative job which exists in
the national economy.
McLain v. Schweiker, 715 F.2d 866, 868-69
(4th Cir. 1983); Wilson v. Califano, 617 F.2d 1050, 1053 (4th
Cir. 1980).
The agency must prove both plaintiff’s capacity to
perform the job and that the job is available.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
Grant v.
Here the ALJ
found that plaintiff was capable of making a successful
adjustment to work currently existing in the national economy.
(R. 29).
Specifically, the ALJ found that plaintiff could
successfully work as an unskilled order clerk and security
monitor.
(Id.).
The ALJ therefore found that the plaintiff was not under a
disability at any time from June 20, 2006 through February 9,
2001, the date of the decision.
IV.
(R. 30).
STANDARD OF REVIEW
The function of this Court on review is to leave the
findings of fact to the agency and to determine upon the whole
record whether the agency’s decision is supported by substantial
evidence—not to try plaintiff’s claim de novo.
Califano, 599 F.2d 597, 598 (4th Cir. 1979).
7
King v.
This Court must
uphold the Commissioner’s decision if it is supported by
substantial evidence and if the ALJ employed the proper legal
standards.
42 U.S.C. §§ 405(g), 1383(c)(3) (2001); Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987).
Substantial evidence “consists
of more than a scintilla of evidence but may be somewhat less
than a preponderance.”
(4th Cir. 1966).
Laws v. Celebrezze, 368 F.2d 640, 642
It is “such relevant evidence as a reasonable
mind might accept to support a conclusion.”
Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotations omitted).
In reviewing the decision, this Court will not re-weigh
conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner.
Craig, 76
F.3d at 589; Hayes v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990).
The Commissioner, as fact finder, is responsible for
resolving conflicts in the evidence.
F.2d 518, 520 (4th Cir. 1962).
Snyder v. Ribicoff, 307
If the Commissioner’s findings
are supported by substantial evidence, this Court is bound to
accept them.
Underwood v. Ribicoff, 298 F.2d 850 (4th Cir.
1962).
Despite deference to the Commissioner’s findings of fact,
“a factual finding by the ALJ is not binding if it was reached
by means of an improper standard or misapplication of the law.”
Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
8
The Court has
authority under 42 U.S.C. § 405(g) to affirm, modify, or reverse
the decision of the agency “with or without remanding the case
for a rehearing.”
Melkonyan v. Sullivan, 501 U.S. 89, 98
(1991).
V.
DISCUSSION
Plaintiff makes two primary arguments on appeal.
The Court
shall address them in turn.
A. Determination of the severity of impairments
Plaintiff argues that substantial evidence did not support
the ALJ’s finding that plaintiff’s uterine fibroids, anemia, and
sleep apnea were non-severe impairments.
Plaintiff contends
instead that the medical and non-medical evidence of record
demonstrates that the aforementioned conditions, individually
and in combination with the plaintiff’s obesity, did cause more
than a minimal effect on her ability to perform basic work
activities.
(ECF No. 15-2, 14-20).
Defendant responds first that the ALJ did not err because
while plaintiff was diagnosed with fibroid tumors and associated
anemia, there was no indication that it was severe, and “the
record does not support a conclusion that [the condition] caused
significant vocationally relevant limitations.”
16).
(ECF No. 17-1,
Similarly, defendant contends that the ALJ did not err in
determining that plaintiff’s sleep apnea, even when considered
in combination with plaintiff’s obesity, “is mild and does not
9
impose ‘significant vocationally relevant limitations’”,
therefore rendering it non-severe.
(Id. at 18).
The severity evaluation is a de minimis “threshold
screening standard to eliminate frivolous claims at an early
stage in the process.”
Bowen v. Yuckert, 482 U.S. 137, 180
(U.S. 1987); see also Felton-Miller v. Astrue, 459 Fed. Appx.
226, 230 (4th Cir. 2011).
20 CFR 404.1521 defines a non-severe
impairment as one that “does not significantly limit . . .
physical or mental ability to do basic work activities.”
SSR
85-28, written “[t]o clarify the policy for determining when a
person’s impairments may be found ‘not severe’,” states that an
impairment is not severe “when medical evidence establishes only
a slight abnormality or a combination of slight abnormalities
which would have no more than a minimal effect on an
individual's ability to work.”
SSR 85-28.
Severe impairments
must have lasted or must be expected to last twelve months.
C.F.R. §§ 404.1509, 1520(a)(ii).
20
Furthermore, if an ailment is
controlled by medication or treatment such that it does not
cause work-related limitations, the ailment is not to be
considered severe.
See Gross v. Heckler, 785 F.2d 1163, 1166
(4th Cir. 1986).
A determination that impairment is not severe requires “a
careful evaluation of the medical findings that describe the
impairment” and “an informed judgment about the limitations and
10
restrictions the impairment(s) and related symptom(s) impose on
the individual's physical and mental ability to do basic work
activities.”
SSR No. 96-3p.
1. The ALJ did not err in determining that plaintiff’s
uterine fibroids are a non-severe impairment.
In determining that plaintiff’s uterine fibroid condition
and associated anemia are non-severe impairments, the ALJ cited
to the uterine artery embolization procedure that the plaintiff
underwent in November 2009, resulting in the improvement of
plaintiff’s condition.
(R. 21).
The ALJ found that there was
“virtually nothing in the record now to indicate that
[plaintiff’s uterine fibroid condition] is a severe impairment”
following the artery embolization.
(Id.).
The Court finds that
this conclusion is substantially supported by the record.
Plaintiff claims that the RFC assessments performed by the
two state agency physicians, Drs. Moore and Hakkarinen,
establish that plaintiff’s uterine fibroids had more than a
minimal effect on her ability to perform basic work activities.
(ECF No. 15-2, 14-15).
Plaintiff also claims that her uterine
fibroid condition continued to cause more than a minimal
limitation on her ability to perform basic work activities
following artery embolization surgery.
(Id. at 16-17).
of plaintiff’s claims is supported by the record.
11
Neither
In his May, 2009 assessment, Dr. Moore did note that the
plaintiff’s primary diagnosis was fibroid tumors, and that her
symptoms included a need to use the bathroom frequently due to
bleeding. While claimant’s reference to need to use the bathroom
suggests that the bleeding could not be managed with pads, etc.,
it is not clear.
His assessment also referenced a February 9,
2009 patient complaint of “heavy bleeding.” (R. 312)
his notes do not indicate a
However,
limitation on plaintiff’s ability
to perform basic work activities, even prior to plaintiff’s
embolization surgery.
(R. 305-312).
Dr. Moore’s assessment
found some exertional limitations (consistent with sedentary
work) with some postural limitations, but the reason cited for
these limitations was the plaintiff’s obesity, not her fibroid
tumors.
(Id. at 307).
Dr. Hakkarinen’s assessment in 2010
following the embolization procedure suggested the same
limitations, and also noted that “she uses bathroom frequently
due to bleeding.”
(R. 340, 343).
At the hearing, plaintiff
stated the surgical procedure resolved the problem “[a]t first.
. . pretty good but now. . . [she is] starting to have some
spotting or bleeding.”
(R. 51).
The ALJ considered the objective medical evidence and
plaintiff’s own statement to her doctor that she was “doing much
better, with far less bleeding” following the embolization
procedure in support of the conclusion that the procedure was
12
successful in alleviating the symptoms of plaintiff’s fibroids.
(R. 326).
It is not clear from the record whether the
complaints of bleeding are throughout the month, or associated
her condition with her menstrual cycle, so confined to a few
days.
(Cf. R. 188 to R. 202).
As noted, the record does not
strongly support a finding that plaintiff’s uterine fibroid
condition was severe prior to her embolization surgery;
following the embolization surgery, the record supports a
finding that the uterine fibroid condition is non-severe.
Thus,
the ALJ’s determination that the fibroid condition is non-severe
is supported by substantial evidence as to the period postsurgery. As to pre-surgery, the record is unclear both as to
whether she had the condition for the requisite duration and
whether her condition met the severity’s definition pre-surgery.
In any event, if the ALJ erred in finding her uterine fibroids
pre-surgery “non-severe” it is harmless error within the context
of all the evidence.
2. The ALJ did not err in determining that plaintiff’s sleep
apnea was a non-severe impairment.
The ALJ found that the plaintiff’s mild sleep apnea was a
non-severe impairment under 20 C.F.R. § 416.909 because it did
not meet the twelve-month durational requirement and because it
did not impose significant vocationally relevant limitations.
(R. 21).
The Court finds that the ALJ erred in interpretation
13
of the durational requirement of 20 C.F.R. § 416.909, but that
substantial evidence still supports the conclusion that
plaintiff’s sleep apnea – if indeed she even has it - is nonsevere.
Plaintiff argues correctly that her sleep apnea condition
actually meets the durational requirement, which states that an
impairment, in order to be considered severe, “must have lasted
or must be expected to last for a continuous period of at least
12 months.”
(ECF No. 15-2, 17)(emphasis added).
It follows
that an impairment is not precluded from a finding of severity
if it has not yet persisted for twelve months, but is expected
to persist into the foreseeable future.
Plaintiff contends
that, in light of this interpretive error on part of the ALJ,
plaintiff’s sleep apnea should be considered a severe
impairment, particularly when considered in combination with her
morbid obesity.
(Id. at 17-19).
However, this claim is
contradicted by the record.
This Court finds that the ALJ was not required to engage in
a severity determination of plaintiff’s sleep apnea, as the
objective medical record does not support a finding that
plaintiff suffered from sleep apnea as a medically determinable
impairment.
Plaintiff relies on consultation notes, finding
that the “patient has multiple signs and symptoms which are
suggestive of possible obstructive sleep apnea.”
14
(R. 366).
However, the physician who conducted the subsequent March 28,
2010 sleep study found that plaintiff experienced zero apnea
events and zero hypopnea events, stating in conclusion that
plaintiff’s diagnosis was “primary snoring (786.00) without
significant sleep apnea; no significant abnormalities.”
362)(emphasis added).
(R.
In absence of a medically determinable
impairment, an assessment of severity is unnecessary.
Whether
“sleep apnea” or “primary snoring,” the record does not
demonstrate that the condition is severe.
B. Residual Functional Capacity Determination
Plaintiff alleges generally that the ALJ’s RFC
determination was not supported by substantial evidence, and
that the ALJ’s conclusory statements contained in the RFC lack
explanation.
(ECF No. 15-2, 21,30).
Specifically, plaintiff
alleges that the ALJ erred in affording “no medical opinion in
the record any weight,” and that the decision to afford no
weight to Dr. Hsu’s opinion was influenced by inappropriate
speculation and not supported with substantial evidence.
(Id.
at 22, 28).
Defendant responds correctly that the plaintiff misstates
the ALJ’s treatment of the medical opinions on record, which was
in accordance with the prescribed administrative procedure and
supported by substantial evidence.
Defendant also contends that
the decision to afford Dr. Hsu’s medical opinion no weight was
15
supported by the objective medical documents on record, and that
any speculation on part of the ALJ did not materially affect the
RFC determination.
(ECF No. 17-1, 24).
1. ALJ’s Treatment of Medical Opinions
a. The ALJ did not err in affording no weight to the
medical opinion of treating physician Dr. Hsu
In her analysis, the ALJ noted that Dr. Hsu found that
plaintiff could sit, stand, or walk for only one hour in an
eight hour workday.
(R. 27).
Dr. Hsu also found that claimant
could never climb, bend, squat, reach, or crawl, and could not
push or perform fine manipulation.
(Id.).
In addition, Dr. Hsu
opined that plaintiff’s medical condition prevents her from
working in any employment.
(Id.).
The ALJ found that Dr. Hsu’s opinion deviated substantially
from the rest of the evidence of record and that the specific
objective findings needed to support the level of restriction
noted in Dr. Hsu’s evaluation were not documented.
(R. 28).
The ALJ also noted that that Dr. Hsu failed to point to any
objective medical testing in the welfare application form she
completed, and seemed to rely heavily on the plaintiff’s
subjective report of symptoms and limitations.
(Id.).
In
regard to Dr. Hsu’s opinion that plaintiff’s medical condition
prevents her from working in any environment, the ALJ stated
16
that the issue of disability is reserved for determination by
the commissioner and that Dr. Hsu’s opinion on the matter can
therefore “[not] be entitled to controlling weight, but must be
carefully considered to determine the extent to which [it is]
supported by the record as a whole or contradicted by persuasive
evidence.”
(Id.) (citing 20 CFR 404.1527(d)(2) and Social
Security Ruling 96-5p).
Plaintiff avers generally that the ALJ failed to support
the aforementioned findings with substantial evidence.
Plaintiff asserts that Dr. Hsu’s prior treatment records for
plaintiff do in fact support the findings in Dr. Hsu’s RFC
assessment.
(ECF No. 15-2, 23).
Specifically, plaintiff refers
to treatment records noting plaintiff’s dizziness and unsteady
walking, an abnormal MRI of the brain taken on April 6, 2010 at
the behest of Dr. Hsu, and treatment notes in Dr. Hsu’s records
describing plaintiff’s “grossly obese body habitus” and edema of
her legs.
(Id. at 23-24).
Plaintiff also contends that the ALJ
engaged in inappropriate speculation regarding the possibility
that Dr. Hsu may have provided a note in support of plaintiff’s
professed disability in order to avoid doctor/patient tension
with the plaintiff, and that this speculation is an
inappropriate basis for the ALJ’s determination that Dr. Hsu
relied heavily on plaintiff’s subjective report of symptoms and
limitations.
(Id. at 29).
17
The defendant argues that “Dr. Hsu’s opinion was
inconsistent with the rest of the record evidence, including her
own treatment notes.”
(ECF No. 17-1, 21).
Specifically, the
defendant refers to Dr. Hsu’s report’s inconsistency with the
reports of the two state agency doctors, both of which indicate
that the plaintiff is capable of sitting for about six hours in
an eight-hour workday.
(Id. at 22).
Defendant notes also that
Dr. Hsu’s records generally do not indicate the decreased
capacity reflected in the RFC, which deviates significantly from
the cumulative longitudinal record of the plaintiff’s condition.
(Id. at 21-23).
Instead, Dr. Hsu’s examination notes, apart
from “notations that Ms. Harris was ambulating slowly with a
cane while recovering from her ankle surgery from January
through April 2010 . . . mainly reflect a normal gait.”
(Id. at
21)(citing R. 271, 283, 483, 486, 489, 492, 495, 498, 505, 508,
511).
Defendant notes that, regardless of any speculation on
part of the ALJ, the objective medical files on record largely
support the finding that Dr. Hsu relied heavily on plaintiff’s
subjective reports in completing the RFC.
(Id. at 24).
The opinions of treating physicians are generally given a
measure of deference by courts due to their “unique perspective
to the medical evidence that cannot be obtained from the
objective medical findings alone.”
20 CFR 404.1527(a)(2).
treating source is “well-supported by medically acceptable
18
If a
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case
record,” it is given controlling weight.
Id.
However, “by
negative implication, if a physician's opinion is not supported
by clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less
weight.”
Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996).
If a treating source opinion does not merit “controlling
weight,” it should be weighed according to the factors
promulgated by the Commissioner in the regulations.
20 C.F.R. §
404.1527(d)(2); SSR 96-2p, 1996 SSR LEXIS 9, 1996 WL 374188
(Jul. 2, 1996).
(1)
(2)
(3)
(4)
(5)
(6)
The factors are:
The length of the treatment relationship and
the frequency of examination;
The nature and extent of the treatment
relationship;
The extent to which the opinion is supported
by medical evidence of record;
The consistency of the opinion with the
record as a whole;
The specialization of the treating
physician; and
Any factors which tend to support or
contradict the opinion.
20 C.F.R. § 404.1527(d)(2).
While a non-controlling treating source opinion is entitled
to deference, an ALJ may still find, after an analysis of the
above factors, that the opinion is only entitled to slight
weight.
See, e.g., Thompson v. Astrue, 442 Fed. Appx. 804, 808
19
(4th Cir. 2011)(affirming decision to afford less weight to a
treating physician).
If, for example, a treating physician’s
final opinion “was not supported by treatment notes or by other
information on file,” an ALJ may discount the opinion.
Russell
v. Comm'r of Soc. Sec., 440 Fed. Appx. 163, 164 (4th Cir. 2011);
see also Anderson v. Comm'r, 127 Fed. Appx. 96, 97 (4th Cir.
2005).
The Court recognizes that the ALJ engaged in some
speculation regarding the possibility of an ulterior motive
behind the submission of Dr. Hsu’s medical opinion.
As
plaintiff points out, such speculation is improper and may
warrant remand if it forms the sole basis for one or more of the
ALJ’s conclusions.
(ECF No. 15-2, 28-29) (citing Haines v.
Astrue, No. SAG-10-cv-822, 2012 U.S. Dist. LEXIS 3235 (D. Md.
2012)).
Indeed, “it cannot be said that the final decision of
the Secretary is supported by ‘substantial evidence’ when that
decision is based, in essence, on nothing more than speculation
by the administrative law judge.”
SSR 82-34.
However, the
speculation that warranted remand in Haines differs
substantially from that committed by the ALJ in this case.
While the speculation in Haines formed the basis of that
ALJ’s definitive conclusions, in the case at hand the ALJ
presents the speculative statement only as an illustrative
hypothesis.
The ALJ does not affirmatively state that the
20
plaintiff ever pressured or attempted to pressure Dr. Hsu, nor
does the ALJ draw any conclusions based on an assumption that
Dr. Hsu was pressured by the plaintiff.
The ALJ only draws the
correlation that such doctor/patient dynamics are more prevalent
in cases where a medical opinion “departs substantially from the
rest of the evidence of record, as in the current case.”
(R.
28).
It could possibly be argued that the ALJ’s hypothesis
contains a thinly veiled insinuation that there was in fact an
ulterior motive behind the presentation of Dr. Hsu’s medical
opinion.
Notwithstanding, the analysis performed by the ALJ is
otherwise satisfactory, and the reasoning behind it is clear.
Specifically, the ALJ makes it clear that the RFC determination
submitted by Dr. Hsu is in conflict with the totality of the
other evidence on record, which includes the less restrictive
RFC determinations of the state agency doctors (R. 305-312,338345), Dr. Hsu’s own treatment notes do not contain the physical
findings, test results, etc., supportive of plaintiff’s alleged
disability (R. 271, 283, 483, 486, 489, 492, 495, 498, 505, 508,
511).
However, they do contain plaintiff’s testimony that her
medical conditions had improved with treatment and that she was
experiencing minimal pain (R. 49, 51, 59, 351), and a handful of
generally positive prognoses by other medical personnel of
record.
(R. 326, 352, 362, 369, 382, 427, 442, 450).
21
The ALJ
thoroughly discussed and developed all of the aforementioned
evidence chronicling the development of plaintiff’s medical
conditions.
Any speculation on part of the ALJ regarding the
doctor/patient pressures was immaterial to the weighing of Dr.
Hsu’s medical opinion, which the ALJ properly supported with
substantial evidence.
b. The ALJ did not err in the consideration of the
medical opinions of the state agency doctors; Drs.
Moore and Hakkarinen
Plaintiff contends that the ALJ assigned no weight to the
opinions of Drs. Moore and Hakkarinen, and in doing so
inappropriately discounted all of the available medical opinions
on record.
(ECF No. 15-2, 22).
Thus, plaintiff avers that the
ALJ failed to support the final RFC assessment with substantial
evidence.
(Id.).
This claim ignores the ALJ’s express assignment of “partial
weight” to the opinions of Drs. Moore and Hakkarinen regarding
plaintiff’s physical limitations.
(R. 27).
The ALJ assigned no
weight only to the doctors’ particular finding that plaintiff
could perform light work, suggesting instead a more restrictive
limitation on the plaintiff’s capacity for work.
(Id.).
In contrast to the opinions of treating physicians, nontreating source opinions are not entitled to any particular
deference, but may still be given substantial weight.
An ALJ is
obligated to discuss and weigh each medical source opinion
22
according to the same six factors used to weigh the opinion of a
treating physician.
20 C.F.R. § 404.1527(d)(2); see also
Chapman v. Comm'r, No. SAG-11-274, 2012 U.S. Dist. LEXIS 180801,
5-6 (D. Md. 2012); Phillips v. Astrue, No. PWG-10-1475, 2012
U.S. Dist. LEXIS 74629 (D. Md. 2012).
This Court finds that plaintiff’s argument is based on a
misreading of the ALJ’s consideration of the state agency
doctors’ opinions and is therefore without merit.
The ALJ did
in fact consider the opinions of the state agency doctors.
Specifically, the ALJ stated that the state agency doctors’
opinions are “internally consistent and consistent with the
evidence as a whole.”
Furthermore, the ALJ ultimately based her
final RFC analysis largely on that of the state agency doctors.
(R. 28).
In assigning no weight to the “light work” aspect of
the doctors’ opinions, the ALJ correctly considered the extent
to which the opinions are supported by medical evidence of
record, the consistency of the opinions with the record as a
whole, and any factors which tend to support or contradict the
opinions.
Thus, this Court finds that the ALJ committed no
error in her consideration of the medical opinions of the two
state agency doctors.
2. The ALJ’s RFC Determination was Supported by Substantial
Evidence.
23
Plaintiff contends that the ALJ failed to support her RFC
determination with substantial evidence, and that the evidence
of record supports a more restrictive RFC determination.
No. 15-2, 24-26).
(ECF
Plaintiff avers specifically that the ALJ
failed to consider plaintiff’s status post- broken right ankle
(Id. at 24), plaintiff’s use of a cane (Id.), and plaintiff’s
obesity (Id. at 25-26) when determining that the plaintiff was
capable of performing sedentary work.
Defendant responds that the ALJ considered the
aforementioned conditions of the plaintiff in making the RFC
determination, and that the RFC determination was supported by
the medical treatment notes on record, the opinions of Drs.
Moore and Hakkarinen, by plaintiff’s activities of daily living,
and by plaintiff’s own statements.
This Court agrees with the
assertions of the defendant, and finds that the ALJ did not err
in the formation of the RFC determination, and that the RFC
determination was properly supported with substantial evidence.
It should be restated that the ALJ found that plaintiff’s
status post- broken right ankle and plaintiff’s obesity
“severe,” thus warranting further inquiry into the disability
status of the plaintiff.
(R. 21).
Furthermore, the ALJ
discussed both of these conditions when determining whether the
plaintiff met one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.
(R. 22).
24
Specifically, after
determining that the plaintiff’s status post- broken right ankle
did not meet the definition of “major dysfunction of a joint”,
the ALJ went on to discuss the adverse impact that obesity can
have upon the co-existing impairment of a weight-bearing joint
(such as an ankle), or upon an individual’s general ability to
“sustain activity on a regular and continuing basis during an
eight-hour day, five-day week, or equivalent schedule.”
(Id.).
The ALJ’s discussion of these conditions in these earlier stages
of the sequential disability analysis does not preclude a
finding that the ALJ failed to properly consider these same
conditions in making her RFC determination.
However, it is at
least suggestive that the ALJ was aware of the conditions,
acknowledged their severity, and thus considered their effect on
the plaintiff’s residual capacity.
In making the RFC determination, the ALJ discussed the
medical record of the fracturing and recovery process of
plaintiff’s right ankle, including the open reduction and
internal fixation procedure, casting, and hardware removal
procedures the plaintiff underwent, between October of 2009 and
March of 2010.
(R. 26)(citing R. 319-325,
346-361).
The ALJ
notes that the medical reports following the plaintiff’s
recovery state that “range of motion [of the ankle] was only
mildly limited, and motors and sensation were intact”, that “the
ankle felt 85 per cent better since the surgery”, and that
25
“[plaintiff] wears a boot for most walking activity and a cane
for all walking activity, and that her pain reaches only a two
out of ten intermittently.”
(R. 26).
The ALJ goes on to discuss the plaintiff’s obesity, noting
explicitly that Social Security Ruling 02-1p instructs
adjudicators to consider obesity in tandem with limitations
resulting from any other physical or mental impairment when
making an RFC determination.
(R. 26-27).
The ALJ noted
specifically that the plaintiff’s Body Mass Index indicates
“extreme obesity.”
(R. 27).
The ALJ makes note of the plaintiff’s own testimony
asserting that the ankle condition had improved with treatment,
but had resulted in tightness and stiffness as well as “pain
several times per week and some swelling for which [the
plaintiff] takes Lasix and wears compression stockings.”
25).
(R.
Furthermore, the ALJ notes that the plaintiff testified
that that she takes care of “all of her own personal care needs,
cooks simple meals, performs light cleaning, rides in a car,
shops, pays bills, counts change, handles a savings account,
uses a checkbook, reads, watches television, and socializes.”
(Id.).
Finally, the ALJ mentions that plaintiff “appeared at
the hearing with a cane.”
(Id.).
This Court finds that the ALJ properly conducted the RFC
determination, and supported the determination with substantial
26
evidence.
The ALJ incorporated the medical opinions of Drs.
Moore and Hakkarinen into the RFC determination as noted earlier
in this opinion.
In addition, to further inform the RFC
determination, the ALJ asked the VE what impact the plaintiff’s
use of a cane would have on suitable work positions.
The VE
stated that “the sedentary positions would not be affected by
having a cane [and] the light positions would be eliminated.”
(R. 70).
The ALJ ultimately decided that the plaintiff was only
capable of sedentary work, whereas the doctors suggested the
plaintiff was capable of “light” work.
(R. 27).
Accordingly,
the use of the cane would not affect plaintiff’s ability to do
sedentary work, identified by the VE.
VI.
CONCLUSION
For the reasons set forth above, the Court finds that the
ALJ committed no material errors in her opinion.
Accordingly,
the Court DENIES plaintiff’s motion for summary judgment and
GRANTS defendant’s motion for summary judgment.
Despite the informal nature of this letter, it shall
constitute an Order of the Court, and the Clerk is directed to
docket it accordingly.
/s/
Susan K. Gauvey
United States Magistrate Judge
27
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