Morgan v. Commissioner of Social Security

Filing 27

MEMORANDUM OPINION Signed by Magistrate Judge Thomas M. DiGirolamo on 9/27/2017. (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
TONYA LA’FAWN MORGAN,

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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 16-1141

MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Tonya La’Fawn Morgan 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 her application for Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act. Before the Court are Plaintiff’s Motion for Summary Judgment
(ECF No. 22), Defendant’s Motion for Summary Judgment (ECF No. 23), and “Plaintiff’s Reply
Memorandum in Support of Plaintiff’s Motion for Summary Judgment” (ECF No. 26).2 Plaintiff
contends that the administrative record does not contain substantial evidence to support the
Commissioner’s decision that she is not disabled. No hearing is necessary. L.R. 105.6. For the
1

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
25(d).
2

The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.

reasons that follow, Defendant’s Motion for Summary Judgment (ECF No. 23) is GRANTED,
Plaintiff’s Motion for Summary Judgment (ECF No. 22) is DENIED, and the Commissioner’s
final decision is AFFIRMED.
I
Background
Plaintiff was born in 1962, has a high-school education, and previously worked as a
school bus driver, fast-food worker, and cashier. R. at 38. Plaintiff protectively filed an
application for SSI on February 1, 2012, alleging disability beginning on March 17, 2010, due to
GERD and leg and heart problems.

R. at 32, 198-203, 221.

The Commissioner denied

Plaintiff’s application initially and again on reconsideration, so Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). R. at 104-29, 134-41, 145-49. On November 25,
2014, ALJ Eugene Bond held a hearing in Washington, D.C., at which Plaintiff and a vocational
expert (“VE”) testified. R. at 45-61. On January 15, 2015, the ALJ issued a decision finding
Plaintiff not disabled since the application date of February 1, 2012. R. at 29-44. Plaintiff
sought review of this decision by the Appeals Council, which denied Plaintiff’s request for
review on March 17, 2016. R. at 1-25, 299-300, 643-48. The ALJ’s decision thus became the
final decision of the Commissioner. See 20 C.F.R. § 416.1481; see also Sims v. Apfel, 530 U.S.
103, 106-07, 120 S. Ct. 2080, 2083 (2000).
On April 18, 2016, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. After the parties consented, this case was transferred to a United
States Magistrate Judge for final disposition and entry of judgment.

The case then was

reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.

2

II
Summary of Evidence
A.

Vinu Ganti, M.D.
The ALJ reviewed Dr. Ganti’s opinions in his decision:
In May 2012, treating provider, V. Ganti, MD [R. at 465-511, 536-42,
561-71, 580-83] opined that [Plaintiff] could sit for one hour in an eight-hour
workday, stand or walk for zero hours in an eight-hour workday, requires three
30-minutes [sic] breaks during an eight-hour workday, can occasionally lift less
than ten pounds, and is expected to be absent more than four months a month [R.
at 461-64]. In August 2013, Dr. Ganti provided another opinion, stating that
[Plaintiff] could sit for four hours in an eight-hour workday, stand or walk for two
hours in an eight-hour workday, will requires [sic] one-hour breaks “all day,” can
occasionally lift 10 pounds, and is expected to be absent more than four times per
month [R. at 549-52]. In October 2013, Dr. Ganti opined that [Plaintiff] could sit
for six hours in an eight-hour workday, stand or walk for three hours in an eighthour workday, will require unscheduled breaks “all day,” can occasionally lift less
than 10 pounds, is limited to 25% use of the upper extremities, and is expected to
be absent more than four times a month [R. at 553-56]. In August 2014, Dr. Ganti
opined that [Plaintiff] could sit for three hours in an eight-hour day, stand or walk
for 15 minutes in an eight-hour day, would require unscheduled breaks every 30
minutes lasting 30 minutes each, never lift any weight, is limited to 80% use of
the upper extremities, and is expected to be absent more than four times per
month [R. at 584-88].

R. at 37.
B.

State Agency Medical Consultants
On October 16, 2012, a state agency medical consultant, Fulvio Franyutti, M.D., assessed

Plaintiff’s physical residual functional capacity (“RFC”). R. at 111-13. Dr. Franyutti 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 limited pushing and/or pulling with the left
lower extremity. R. at 112. Plaintiff occasionally could balance, stoop, kneel, crouch, crawl,
and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 112. Plaintiff was to

3

avoid concentrated exposure to extreme cold and heat; vibration; and fumes, odors, dusts, gases,
and poor ventilation. R. at 113. She was to avoid even moderate exposure to hazards such as
machinery and heights. R. at 113. Plaintiff had no manipulative, visual, or communicative
limitations, however. R. at 113. Dr. Franyutti found that Dr. Ganti’s May 2012 opinion “relies
heavily on the subjective report of symptoms and limitations provided by the individual, and the
totality of the evidence does not support the opinion.” R. at 114. Dr. Ganti’s “opinion is without
substantial support from other evidence of record, which renders it less persuasive.” R. at 114.
On April 5, 2013, another state agency consultant, J. Biddison, M.D., again assessed
Plaintiff’s physical RFC. R. at 124-26. Dr. Biddison 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 limited pushing and/or pulling with the left lower extremity. R. at 124-25.
Plaintiff occasionally could climb, balance, stoop, kneel, crouch, and crawl. R. at 125. Although
she was to avoid concentrated exposure to hazards, Plaintiff had no manipulative, visual, or
communicative limitations. R. at 125-26. Dr. Biddison noted Plaintiff’s diagnosis of deep vein
thrombosis in her left leg in March 2011 but that there was no significant edema or ulceration on
examination in September 2012. R. at 125. Dr. Biddison also found Dr. Ganti’s May 2012
opinion to be “without substantial support from other evidence of record” and thus “less
persuasive.” R. at 126-27.
C.

Plaintiff’s Testimony
The ALJ summarized Plaintiff’s testimony in his decision:
[Plaintiff] alleges disabling limitations due to leg problems, GERD, and
heart problems [R. at 219-31.] [Plaintiff] testified regarding difficulty with sitting
and standing. She reported swelling every day. Sometimes she cannot get out of
bed. She goes to the doctor every 2-3 months for deep vein thrombosis.
4

[Plaintiff] testified that she takes eardrops and nose spray for vertigo; the
treatment helps “sometimes.” She is treated for hypertension, and her treatment
helps “sometimes.”
R. at 35; see R. at 48-57.
D.

VE Testimony
The VE testified that a hypothetical individual with the same age, education, and work

experience as Plaintiff and with the RFC outlined below in Part III could perform the light,
unskilled jobs of counter clerk, router, or office helper.3 R. at 58-59. According to the VE, her
testimony, with the exception of her testimony regarding a sit-stand option, was consistent with
the Dictionary of Occupational Titles.4 R. at 59. An individual who would need to elevate his or
her feet above the heart for two to three hours during the workday would not be able to maintain
work. R. at 60. Further, an individual off task 15% of a workday would not be able to maintain
work. R. at 60.
III
Summary of ALJ’s Decision
On January 15, 2015, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the application date of February 1, 2012; and (2) had an impairment or a

3

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b). “Unskilled work is work which
needs little or no judgment to do simple duties that can be learned on the job in a short period of
time.” Id. § 416.968(a).
4

“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d
148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 416.966(d)(1). “Information contained in the
[Dictionary of Occupational Titles] is not conclusive evidence of the existence of jobs in the
national economy; however, it can be used to establish a rebuttable presumption.” English v.
Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
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combination of impairments considered to be “severe” on the basis of the requirements in the
Code of Federal Regulations; but (3) did not have an impairment or a combination of
impairments meeting or equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P,
app. 1; and (4) was unable to perform her past relevant work; but (5) could perform other work
in the national economy, such as a counter clerk, router, or office helper. R. at 34-39. The ALJ
thus found that she was not disabled from February 1, 2012, through the date of the decision. R.
at 39.
In so finding, the ALJ found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 416.967(b) except she is limited to
unskilled work. [Plaintiff] requires a sit-stand option at the work location, defined
as sitting 1-2 hours at a time and standing for 15 minutes alternatively as needed
or as required. [Plaintiff] can frequently hear and understand simple oral or
written instructions.
R. at 35. The ALJ “considered the potential compounding effects of [Plaintiff’s] obesity” under
Social Security Ruling 02-1p. R. at 36. “[Plaintiff] is 5’10” and weighs approximately 350
pounds, producing a body mass index (BMI) of approximately 50. However, [Plaintiff’s] regular
activities, noted above, suggest that her obesity does not rise to a disabling level either on its own
or in combination with another impairment.” R. at 36 (citation omitted).
The ALJ gave “limited weight to Dr. Ganti’s opinions, as they are inconsistent with his
own treatment notes.” R. at 37. “Dr. Ganti repeatedly states that [Plaintiff] is ‘stable,’ ‘in no
apparent distress,’ or ‘normal.’ In addition, Dr. Ganti’s treatment notes are unremarkable for
noted signs of impairment in the upper extremities despite noting 25% usage of the upper
extremities in October 2013 and 80% in August 2014.” R. at 37 (citations omitted).

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IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.

§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”

42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-80 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

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20 C.F.R.

Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).5
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(iii),

404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),

416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).

The claimant is responsible for providing evidence the

Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
5

The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
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consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”

20 C.F.R.

§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.

Id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.

See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is

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supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
VI
Discussion
Plaintiff contends that remand is warranted because the ALJ’s RFC assessment failed to
address her alleged need to elevate her legs as a result of her deep vein thrombosis. Pl.’s Mem.
Supp. Mot. Summ. J. 13-15, ECF No. 22-2. She further maintains that the ALJ failed to evaluate
properly her obesity according to Social Security Ruling 02-1p. Id. at 15-19. Plaintiff finally
asserts that substantial evidence does not support the weight given by the ALJ to Dr. Ganti’s
opinions. Id. at 19-22. For the reasons that follow, Plaintiff’s contentions are unavailing.

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A.

ALJ’s RFC Assessment
Social Security Ruling6 (“SSR”) 96-8p explains how adjudicators should assess RFC and

instructs that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform

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Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
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them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 2016) (remanding
because ALJ erred in not determining claimant’s RFC using function-by-function analysis; ALJ
erroneously expressed claimant’s RFC first and then concluded that limitations caused by
claimant’s impairments were consistent with that RFC).
Plaintiff first maintains that remand is warranted because the ALJ failed to address in the
RFC assessment her alleged need to elevate her legs as a result of her deep vein thrombosis.
Pl.’s Mem. Supp. Mot. Summ. J. 13-15, ECF No. 22-2. According to Plaintiff, her leg “swells
every day. Seven days a week, it swells, and I have to sit down and put it up for like two to three
hours for the swelling to go down.” R. at 53. The VE testified that a person’s need to elevate his
or her feet above the heart for two to three hours during the workday would preclude all work.
R. at 60. The ALJ ultimately included a sit-stand option in the RFC assessment “[t]o further
account for [Plaintiff’s] deep vein thrombosis, vertigo, and obesity.” R. at 38.
The Court finds that substantial evidence supports the ALJ’s RFC assessment and his
consideration of Plaintiff’s deep venous thrombosis. As the ALJ noted in his decision, Plaintiff
has a history of chronic venous insufficiency in the left leg. Providers diagnosed
deep vein thrombosis (DVT) in March 2010. She began taking hydrocodone for
pain. However, a report from May 2011 stated [Plaintiff] was on Coumadin for
three months and a subsequent DVT workup was negative. She was off
Coumadin in May 2011. Treatment notes from October 2011 stated that the
condition had resolved. Treatment notes from January 2013 indicate “chronic
edema of both lower extremities resolving”; a note from February 2013 stated
“chronic edema of both lower extremities resolved.” In February 2013,
[Plaintiff’s] primary care physician stated [Plaintiff] is doing “very well” with “no
major issues or no concerns at this time.” Treatment notes from August 2013,
September 2013, October 2013, December 2013, and May 2014 indicate “chronic
edema of both lower extremities,” but the provider repeatedly notes that [Plaintiff]
is “stable,” “in no apparent distress,” or “normal.” [Plaintiff] testified that she
remains off Coumadin.

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R. at 36 (citations omitted); see, e.g., R. at 477, 490-91, 539, 541, 561-71, 580-83. Plaintiff,
moreover, points to no evidence in the record of any medical opinion that she should elevate her
legs above her heart. See Stephenson v. Comm’r of Soc. Sec., 635 F. App’x 258, 263 (6th Cir.
2015); Martin v. Berryhill, No. 1:16-3741-SVH, 2017 WL 3446573, at *15 (D.S.C. Aug. 11,
2017) (“Plaintiff has cited no evidence to support a need to elevate his right leg, and the
undersigned’s review of the record reveals no medical opinions or other evidence, aside from
Plaintiff’s testimony, that supports such a restriction. Therefore, the ALJ was not required to
consider the VE’s testimony that a need to elevate the right leg during the workday would
preclude employment because the restriction was not credibly established in the record.”
(citation omitted)); Deaver v. Colvin, No. 5:13-CV-05776, 2014 WL 4639888, at *21 (S.D.W.
Va. Sept. 16, 2014) (“Neither any consultant that offered an opinion, or an examiner, nor any of
Claimant’s treating providers placed any physical limitations on Claimant regarding her ability to
sit, stand, or walk or advised her to elevate her legs as she alleges that she is required to do.
Accordingly, the undersigned finds that Claimant’s condition improved with medication and
other treatment and that the ALJ’s RFC is supported by substantial evidence.”). The ALJ also
found that Plaintiff’s “regular activities suggest greater abilities than alleged.

She has no

restrictions on her driver’s license and she helps her mother with cooking, cleaning, and grocery
shopping. She goes to church 2-3 times per month. She visits family members” (R. at 36
(citations omitted)). Substantial evidence thus supports the ALJ’s decision not to incorporate in
the RFC assessment a requirement of leg elevation. See Roberts v. Colvin, Civil No. 15-164ART, 2015 WL 12661963, at *3 (E.D. Ky. Dec. 22, 2015) (“[The claimant’s] testimony about
her activities suggests that she does not need to constantly elevate her legs. [The claimant]
testified that she elevates her legs while watching television or talking on the phone, but did not

13

mention doing so other times. In addition, [the claimant] said that she shopped for groceries
twice a month, cooked for herself, cleaned, attended church every Sunday, went to hour-long
hair appointments at Walmart, and—during the summer—went to the park every day with her
niece and worked part-time for a community action agency. These types of activities suggest
that [the claimant] can function for extended periods of time without elevating her legs.
Therefore, the ALJ’s decision not to limit [the claimant] to jobs where she could elevate her feet
was supported by substantial evidence.” (citations omitted)). Finally, contrary to Plaintiff’s
assertion, the ALJ’s inclusion of a sit-stand option accounted for Plaintiff’s swelling in her legs.
See id. (“Moreover, the ALJ did accommodate any swelling in [the claimant’s] legs in his
hypothetical to the VE. [The claimant] testified that her legs swell when she sits for too long or
stands for too long. So the ALJ asked the VE for jobs with an option to switch from sitting to
standing every 30 minutes. And there is no indication from the record that the thirty-minute
sitting/standing rotation would not accommodate any alleged swelling issues.” (citations
omitted)). For these reasons, Plaintiff’s contentions in this regard are unavailing.
B.

ALJ’s Consideration of Plaintiff’s Obesity
Plaintiff next contends that the ALJ failed to evaluate properly her obesity according to

SSR 02-1p, arguing that the ALJ failed to consider properly the effect of her obesity in
combination with her other impairments and on her ability to work on a sustained basis. Pl.’s
Mem. Supp. Mot. Summ. J. 15-19, ECF No. 22-2. The ALJ, however, acknowledged Plaintiff’s
obesity and found it to be a severe impairment. R. at 34. In fact, the ALJ stated that he had
“considered the potential compounding effects of [Plaintiff’s] obesity pursuant to SSR 02-01p,”
but he had found that Plaintiff’s activities “suggest that her obesity does not rise to a disabling
level either on its own or in combination with another impairment.” R. at 36. Thus, “[t]he ALJ’s

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determination of Plaintiff’s functional limitations was based on Plaintiff’s reports of daily
activities . . . , which show that any limitations based in part on obesity would not preclude light
work as modified by the RFC.” Resendez v. Colvin, No. 14-CV-02969-NJV, 2015 WL 5316442,
at *7 (N.D. Cal. Sept. 11, 2015). “Plaintiff fails to point the court to any evidence of record to
indicate that [her] obesity would limit [her] ability to function at the RFC level.” Id. “Plaintiff’s
reports of [her] own daily activities support the ALJ’s conclusion that even with Plaintiff’s
obesity [she] can perform work at the RFC level.” Id. In any event, the ALJ included a sit-stand
option to account for Plaintiff’s obesity. R. at 38. Because Plaintiff “has not set forth, and there
is no evidence in the record, of any functional limitations as a result of her obesity that the ALJ
failed to consider,” Plaintiff’s argument regarding the ALJ’s consideration of her obesity is
without merit. Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 2005).
C.

ALJ’s Consideration of Dr. Ganti’s Opinions
Plaintiff finally asserts that the ALJ failed to comply with 20 C.F.R. § 416.927 by failing

to give adequate weight to the opinions of Dr. Ganti, her treating primary care physician. Pl.’s
Mem. Supp. Mot. Summ. J. 19-22, ECF No. 22-2. In this regard, the Fourth Circuit reiterated
the following standard for considering medical opinions. Dunn v. Colvin, 607 F. App’x 264,
267-68 (4th Cir. 2015).

When evaluating medical opinions, the ALJ should consider

“(1) whether the physician has examined the applicant, (2) the treatment relationship between the
physician and the applicant, (3) the supportability of the physician’s opinion, (4) the consistency
of the opinion with the record, and (5) whether the physician is a specialist.” Johnson, 434 F.3d
at 654; see 20 C.F.R. § 416.927. “An ALJ’s determination as to the weight to be assigned to a
medical opinion generally will not be disturbed absent some indication that the ALJ has dredged
up ‘specious inconsistencies,’” Dunn, 607 F. App’x at 267 (quoting Scivally v. Sullivan, 966 F.2d

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1070, 1077 (7th Cir. 1992)), “or has failed to give a sufficient reason for the weight afforded a
particular opinion,” id. (citing 20 C.F.R. § 404.1527(d) (1998)); see 20 C.F.R. § 416.927(c).
A treating source’s opinion on issues of the nature and severity of the impairments will
be given controlling weight when well supported by medically acceptable clinical and laboratory
diagnostic techniques and when the opinion is consistent with the other substantial evidence in
the record. 20 C.F.R. § 416.927(c)(2); see Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017).
Conversely, however, “the ALJ holds the discretion to give less weight to the testimony of a
treating physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 171,
178 (4th Cir. 2001). “[I]f 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, 76 F.3d at 590.

In other words, “a treating physician’s opinion is to be accorded

comparatively less weight if it is based on the physician’s limited knowledge of the applicant’s
condition or conflicts with the weight of the evidence.” Meyer v. Colvin, 754 F.3d 251, 256 (4th
Cir. 2014) (citing Craig, 76 F.3d at 590; 20 C.F.R. § 404.1527(c)). Moreover, “the testimony of
a non-examining physician can be relied upon when it is consistent with the record.
Furthermore, if the medical expert testimony from examining or treating physicians goes both
ways, a determination coming down on the side of the non-examining, non-treating physician
should stand.”

Smith, 795 F.2d at 346 (citation omitted).

An ALJ may reject a treating

physician’s opinion in its entirety and afford it no weight if the ALJ gives specific and legitimate
reasons for doing so. See Bishop v. Comm’r of Soc. Sec., 583 F. App’x 65, 67 (4th Cir. 2014)
(per curiam) (citing Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 (9th Cir. 2001); Craig, 76
F.3d at 589-90).

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A medical expert’s opinion as to whether one is disabled is not dispositive; opinions as to
disability are reserved for the ALJ and for the ALJ alone. See 20 C.F.R. § 416.927(d)(1).
Generally, the more the medical source presents relevant evidence to support his opinion, and the
better that he explains it, the more weight his opinion is given.

See id. § 416.927(c)(3).

Additionally, the more consistent the opinion is with the record as a whole, the more weight the
ALJ will give to it. See id. § 416.927(c)(4); see also Dunn, 607 F. App’x at 268.
Plaintiff contends that substantial evidence does not support the ALJ’s reasoning for
affording limited weight to Dr. Ganti’s opinions because the doctor repeatedly noted in treatment
notes her chronic lower extremity edema, asthma, and morbid obesity. Pl.’s Mem. Supp. Mot.
Summ. J. 22, ECF No. 22-2. The Court finds, however, that substantial evidence supports the
limited weight given by the ALJ to Dr. Ganti’s opinions because they were not consistent with
the doctor’s treatment notes (see, e.g., R. at 477, 490-91, 539, 541, 561-71, 580-83). See Burch
v. Apfel, 9 F. App’x 255, 259 (4th Cir. 2001) (per curiam) (ALJ did not err in giving physician’s
opinion little weight where physician’s opinion was not consistent with her own progress notes);
Craig, 76 F.3d at 590 (upholding ALJ’s rejection of treating physician’s opinion because record
contained persuasive contradictory evidence; opinion was conclusory and based on claimant’s
subjective reports, and treating physician’s own notes contradicted his opinion).
In short, “[t]he ALJ need not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see Johnson v. Apfel, 189 F.3d 561, 564
(7th Cir. 1999) (Posner, C.J.) (upholding ALJ’s rejection of physician’s check-box form where it
was contradicted by evidence in record); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)
(finding that ALJ permissibly rejected psychological evaluations because they were check-off

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reports that did not contain any explanation of the bases of their conclusions).

Because

substantial evidence supports the weight afforded by the ALJ to Dr. Ganti’s opinions, the Court
grants Defendant’s Motion for Summary Judgment and affirms the Commissioner’s final
decision.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct
legal standards here.

Thus, Defendant’s Motion for Summary Judgment is GRANTED,

Plaintiff’s Motion for Summary Judgment is DENIED, and the Commissioner’s final decision is
AFFIRMED.
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 23) is
GRANTED.

Plaintiff’s Motion for Summary Judgment (ECF No. 22) is DENIED. The

Commissioner’s final decision is AFFIRMED. A separate order will issue.

Date: September 27, 2017

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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