Miltenberger v. Colvin

Filing 22

REPORT AND RECOMMENDATIONS re 18 MOTION for Summary Judgment filed by Carolyn W. Colvin, 14 MOTION for Summary Judgment filed by Beverly Linn Miltenberger; Objections to R&R must be served and filed within fourteen (14) days. Signed by Magistrate Judge Stephanie A Gallagher on 7/21/2014. (jf2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BEVERLY LINN MILTENBERGER

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v.
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Civil Case No. WMN-13-1448
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COMMISSIONER, SOCIAL SECURITY
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-referenced case was referred to me to
review the parties’ dispositive cross-motions and to make recommendations pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the parties’ cross-motions
for summary judgment, Ms. Miltenberger’s reply, and the Commissioner’s surreply. ECF Nos.
14, 18, 19, 20. This Court must uphold the Commissioner’s decision if it is supported by
substantial evidence and if proper legal standards were employed. 42 U.S.C. § 405(g); Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
I find that no hearing is necessary. Local R. 105.6 (D. Md. 2011). For the reasons set forth
below, I recommend that the Commissioner’s motion be granted and that Ms. Miltenberger’s
motion be denied.
Ms. Miltenberger applied for Disability Insurance Benefits and Supplemental Security
Income on May 14, 2009, originally alleging a disability onset date of December 24, 2008. (Tr.
164-71). Her claims were denied initially on October 28, 2009, and on reconsideration on April
7, 2010.

(Tr. 79-83, 86-89).

An Administrative Law Judge (“ALJ”) held a hearing on

November 2, 2011, (Tr. 35-72), and subsequently denied benefits to Ms. Miltenberger in a
written opinion, (Tr. 14-34). The Appeals Council declined review, (Tr. 1-5), making the ALJ’s
decision the final, reviewable decision of the agency.
The ALJ found that Ms. Miltenberger suffered from the severe impairments of

discogenic and degenerative disc disease of the lumbar spine, degenerative joint disorder of the
hip(s), history of trigeminal neuralgia, history of foot pain, and depression.

(Tr. 19). Despite

these impairments, the ALJ concluded that Ms. Miltenberger retained the residual functional
capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she
can never climb ladders, ropes and scaffolds. She can occasionally balance,
stoop, kneel, crouch and crawl. She can occasionally climb ramps and stairs. She
can perform unskilled work as well as work that is repetitive in nature and
involves following a routine. She is limited [to] a work environment with general
goal versus production rate goals with few if any changes in the work setting and
no need to plan work or to set goals.
(Tr. 22). After considering testimony from a vocational expert (“VE”), the ALJ determined that
Ms. Miltenberger could perform jobs existing in significant numbers in the national economy,
and that she was not therefore disabled. (Tr. 27-28).
Ms. Miltenberger disagrees with the ALJ’s conclusion. She asserts several arguments in
support of her appeal: (1) that the ALJ failed to properly determine her RFC assessment; (2) that
the ALJ assigned inadequate weight to the opinion of her treating physician, Dr. Mir; (3) that the
ALJ’s RFC assessment did not incorporate a finding regarding the number of hours she can stand
and walk; and (4) that the ALJ erroneously made an adverse credibility determination. Each
argument lacks merit.
Ms. Miltenberger’s first contention is that the ALJ failed to properly determine her RFC
assessment.

Pl. Mot. 8-12.

According to Ms. Miltenberger, one of the two state agency

evaluating physicians, Dr. Moore, wrote an opinion supporting a finding that she would only be
able to perform sedentary work.

Id. However, Ms. Miltenberger concedes that Dr. Moore

opined that she could stand/walk somewhere between two and four total hours per day, and that
the other state agency physician, Dr. Najar, opined that she could stand/walk for six hours in an
eight hour workday. Pl. Mot. 9. The regulations are clear that sedentary work requires standing

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or walking that would “total no more than about 2 hours of an 8-hour workday.” SSR 83-10,
1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983). The requirement for light work is not as specific,
stating only that “a job is in this category when it requires a good deal of walking or standing.”
Id. Because Dr. Moore expressly opined that Ms. Miltenberger was capable of walking and
standing for more than two hours total per day, it is clear that Dr. Moore’s assessment supported
a finding of greater than a sedentary capacity. At the very least, under Dr. Moore’s RFC
assessment, Ms. Miltenberger could perform a reduced range of light work.
Despite Dr. Moore’s opinion, the ALJ did not ultimately include, in the RFC assessment,
any specific standing or walking restrictions to ensure that the total time spent on those activities
would be less than four hours. However, the ALJ cited to adequate evidence to explain that
decision, citing to Ms. Miltenberger’s descriptions of her ability to walk and engage in other
daily activities, observations made by physicians of her gait and ambulation, and the successful
administration of pain medications and hip injections under fluoroscopy. (Tr. 23-26). Moreover,
Dr. Najar’s opinion, which was rendered after Dr. Moore’s opinion, also supports the RFC
assessment determined by the ALJ.

(Tr. 370-77).

The RFC assessment for light work

comported with the medical findings credited by the ALJ, specifically X-rays demonstrating
“lumbar and cervical spondylosis coupled with bilateral hip degenerative changes.” (Tr. 26); see
also (Tr. 251, 278-80.) Accordingly, remand is not warranted.
Next, Ms. Miltenberger alleges that the ALJ afforded inadequate weight to the opinions
of her treating neurologist, Dr. Mir. Pl. Mot. 12-14. Initially, the ALJ is not required to give
controlling weight to a treating physician’s opinion on the ultimate issue of disability. 20 C.F.R.
§ 404.1527(d)(1) (“We are responsible for making the determination or decision about whether
you meet the statutory definition of disability . . . A statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will determine that you are disabled.”);

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SSR 96–5p, 1996 WL 374183, at *1 (S.S.A. July 2, 1996) (instructing that “treating source
opinions on issues reserved to the Commissioner are never entitled to controlling weight or
special significance”). Also, this Court’s role is not to reweigh the evidence or to substitute its
judgment for that of the ALJ, but simply to adjudicate whether the ALJ’s decision was supported
by substantial evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Dr. Mir had
two “opinions” at issue. One was a letter in which Dr. Mir stated that Ms. Miltenberger’s
conditions were “progressive and dibilitating [sic].” (Tr. 290). The other note states that,
“[b]ecause of her persistent pain in the back and her trigeminal neuralgia and her severe anxiety
and depression, [Miltenberger] has not been able to obtain gainful employment.” (Tr. 361).
Neither of those notes constitutes a definitive opinion that Ms. Miltenberger lacks the residual
functional capacity to perform work. Dr. Mir has not provided any specific opinion regarding,
for example, the length of time in a workday that Ms. Miltenberger could stand or walk. Even if
Dr. Mir’s notes were to be interpreted as an opinion that Ms. Miltenberger was physically unable
to work, the opinion on an issue reserved to the Commissioner would not be entitled to
controlling weight.
Moreover, the ALJ appropriately noted that Dr. Mir’s treatment notes stood in stark
contrast to his opinions. (Tr. 26-27). For example, just three days before the letter in which he
stated that Ms. Miltenberger’s conditions were progressive and debilitating, Dr. Mir’s treatment
notes indicated that she was in “no acute distress[,]” that her trigeminal neuralgia symptoms
were under control, that she had no definite or reproducible weakness, and that he recommended
stretching exercises for her pain and counseling for depression. (Tr. 358-59). Similarly, records
from a few weeks earlier reflected that Ms. Miltenberger was in only “mild distress” from her
neck and back pain. (Tr. 361). In light of the fact that Dr. Mir’s opinions were unsupported in
the medical record, even by his own treatment notes, the ALJ did not err in assigning the

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opinions “little weight.”
Ms. Miltenberger’s next argument is that the ALJ failed to specify the precise amount of
standing and walking she could perform in his hypothetical question to the VE. Pl. Mot. 14-16.
The ALJ is afforded “great latitude in posing hypothetical questions.” Koonce v. Apfel, No.
9801144, 1999 WL 7864, at *5 (4th Cir. Jan. 11, 1999), and need only pose those that are based
on substantial evidence and accurately reflect a claimant’s limitations. See Copeland v. Bowen,
861 F.2d 536, 540-41 (9th Cir. 1988). The hypothetical in this case specified that the individual
“can perform light exertional activities.”

(Tr. 68).

Ms. Miltenberger contends that the

hypothetical failed to inform the VE as to how long the hypothetical individual could stand or
walk throughout a normal work day. Pl. Mot. 14-16. However, the ALJ’s reference to “light
work” implies a determination that the hypothetical individual was capable of “a good deal of
walking or standing.” See SSR 83-10, at *5. The experienced VE knew that the ALJ’s question
incorporated all of the limitations associated with light work, which comport with the RFC the
ALJ found. The ALJ need not reiterate all of the limitations inherent in each category of work
when posing a hypothetical question. For these reasons, the ALJ’s hypothetical to the VE
adequately addressed standing and walking.
Finally, Ms. Miltenberger asserts that the ALJ made an improper adverse credibility
assessment regarding Ms. Miltenberger’s complaints of pain. Pl. Mot. 16-17. First, the ALJ
cited the correct standard governing a credibility assessment. (Tr. 22-23). In addition, the ALJ
provided a thorough explanation of the evidence upon which he relied in making the adverse
credibility assessment, including not only the inconsistency between Ms. Miltenberger’s level of
daily activities and her alleged impairments, but also the “essentially normal findings upon
examination coupled with the conservative course of treatment the claimant has pursued.” (Tr.
23). Though Ms. Miltenberger contends that the ALJ “dismissed the credibility based on her

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described daily activities,” Pl. Mot. 16, it is clear from the ALJ’s opinion that he engaged in an
extensive analysis of the medical evidence in addition to considering Ms. Miltenberger’s daily
activities. (Tr. 23-26).

As noted above, that medical evidence included mild X-ray findings,

successful treatment of trigeminal neuralgia with medication, a normal nerve conduction study, a
successful hip injection, and a finding of only mild cognitive impairment on mental examination.
Id.

Because the ALJ supported his conclusions with substantial evidence, remand is not

warranted.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1.

the Court GRANT Defendant’s Motion for Summary Judgment (ECF No. 18);

2.

the Court DENY Ms. Miltenberger’s Motion for Summary Judgment (ECF No.

and

14) and CLOSE this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b) and Local Rule 301.5.b.
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: July 21, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge
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