Nay v. Colvin
ORDER granting 25 Motion for Judgment on the Pleadings; denying 28 Motion for Judgment on the Pleadings; and declining to adopt 31 Memorandum and Recommendation - Signed by District Judge Louise Wood Flanagan on 08/20/2014. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
CHARLES R. NAY,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
This matter comes before the court on the parties’ cross motions for judgment on the
pleadings (DE 25, 28).1 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge Robert B. Jones, Jr. issued a memorandum and
recommendation (“M&R”) (DE 31), wherein it is recommended that the court deny plaintiff’s
motion, grant defendant’s motion, and that the final decision by defendant be affirmed. Plaintiff
timely filed objections to the M&R and the response time has expired. In this posture, the issues
raised are ripe for ruling. For the reasons that follow, the court rejects the recommendation of the
magistrate judge, grants plaintiff’s motion, denies defendant’s motion, and remands this case for
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on July 27, 2009, alleging disability beginning March 1, 2009. This
Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin, Acting Commissioner of Social Security, has been named as
defendant in this case in place of former Commissioner Michael J. Astrue.
application was denied initially and upon reconsideration.
Hearing was held before an
Administrative Law Judge (“ALJ”) who determined that plaintiff was not disabled during the
relevant time period in a decision dated June 23, 2011. The appeals council denied plaintiff’s
request for review on December 10, 2012, and plaintiff filed the instant action on February 7, 2013.
Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner’s final
decision denying benefits. The court must uphold the factual findings of the ALJ “if they are
supported by substantial evidence and were reached through application of the correct legal
standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “[Substantial evidence] means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The standard is met by “more
than a mere scintilla of evidence but . . . less than a preponderance.” Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966).
To assist it in its review of the Commissioner’s denial of benefits, the court may “designate
a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and
recommendations for the disposition [of the motions for judgment on the pleadings].” 28 U.S.C.
§ 636(b)(1)(B). The parties may object to the magistrate judge’s findings and recommendations,
and the court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. § 636(b)(1). Absent a
specific and timely filed objection, the court reviews only for “clear error,” and need not give any
explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the
record, “the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
The ALJ’s determination of eligibility for Social Security benefits involves a five-step
sequential evaluation process, which asks whether:
(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a
medical impairment (or combination of impairments) that are severe; (3) the
claimant’s medical impairment meets or exceeds the severity of one of the
impairments listed in [the regulations]; (4) the claimant can perform [his] past
relevant work; and (5) the claimant can perform other specified types of work.
Johnson v. Barnhart, 434 F.3d 650, 653 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The
burden of proof is on the claimant during the first four steps of the inquiry, but shifts to the
Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ
found that plaintiff had not engaged in gainful employment since March 1, 2009. (R. 17). At step
two, the ALJ found that plaintiff had the following severe impairments: history of back fusion
surgery, history of burns to upper and lower extremities, diabetes, coronary artery disease,
hypertension, hyperlipidemia, and obesity. (R. 17-18). He also found that plaintiff had the
following non-severe impairments: stomach pain and constipation due to gastroesophageal reflux
disease (GERD) and gastritis, hearing loss, and sleep apnea. (R. 18-19). The ALJ also found that
plaintiff had a non-medically determinable impairment of clogged and swollen saliva glands and
seizures. (R. 19). However, at step three, the ALJ further determined that these impairments were
not severe enough, either individually or in combination, to meet or medically equal one of the listed
impairments in the regulations. (R. 19-20).
Prior to proceeding to step four, the ALJ determined that plaintiff had residual functional
capacity (“RFC”) to perform light work with the following restrictions: requires a sit or stand option
while working; only occasionally climb stairs or ramps, and never climb ladders, ropes, or scaffolds;
perform only occasional bending, balancing, stooping, crawling, kneeling, or crouching, and should
have only occasional overhead reaching with both hands; must use an assistive device such as a cane
while working; avoid hazardous machinery and occupations with vibrations due to prior fusion
surgery; and work in a low noise environment. (R. 20). In making this assessment, the ALJ found
plaintiff’s statements about his limitations were not fully credible. (R. 21). At step four, the ALJ
determined plaintiff did not have the RFC to perform the requirements of his past relevant work.
(R. 24). At step five, upon considering plaintiff’s age, education, work experience, and RFC, as well
as testimony of a vocational expert (“VE”), the ALJ concluded that plaintiff is capable of adjusting
to the demands of other employment opportunities that exist in significant numbers in the national
economy. (R. 25-26). Accordingly, the ALJ determined plaintiff had not been under a disability,
as defined in the Social Security Act, during the relevant time period. (R. 26).
Plaintiff raises three objections to the M&R, incorporating in part arguments raised in his
brief in support of his motion for judgment on the pleadings. Specifically, plaintiff argues that: (1)
the ALJ failed by not according controlling weight to the opinion of a treating source; (2) the ALJ
improperly evaluated the credibility of plaintiff’s statements; and (3) the ALJ relied upon
insufficient VE testimony. Upon de novo review of plaintiff’s objections, the court concludes that
the first two objections should be overruled, but the third objection should be sustained, and the
court orders remand.
The ALJ’s Evaluation of Treating Source Opinion
Plaintiff contends the ALJ erred by not giving controlling weight to the March and May 2011
treating source opinions of Dr. Staley Moore. Although the opinion of a treating source generally
is entitled to “great weight,” the ALJ is not required to give it “controlling weight.” Craig, 76 F.3d
at 589-90. “[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. If the ALJ determines a treating source opinion should not be given controlling weight, then
the ALJ must evaluate and weigh the opinion according to the following non-exclusive list: “(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 v. Barnhart, 434
F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). The ALJ must state the weight given
to a treating source’s medical opinion and provide specific reasons for the weight given to that
opinion. SSR 96-2p, 1996 WL 374188, at *5.
Here, the ALJ accorded limited weight to Dr. Moore’s March 2011 opinion because Dr.
Moore’s findings were inconsistent with his own records. (R. 24). The ALJ accorded little weight
to the May 2011 opinion because it did not include specific functional limitations, and was unclear
and conclusory. (R. 24).
As discussed by the ALJ, in his March 2011 opinion, Dr. Moore opined that because of
severe, chronic sciatica, plaintiff: (1) should avoid lifting and carrying; (2) could sit, stand, or walk
no more than two hours in an eight hour workday; (3) needs a cane to ambulate in a normal
workday; (4) should never push or pull with arm or leg controls, rarely climb stairs or ladders, only
occasionally perform gross and fine manipulation, and never perform any bending or stooping
movements; (5) would be likely to miss more than four days per month because of his medical
condition. (R. 346). The ALJ relied upon Dr. Moore’s own treatment notes in assigning little
weight to this opinion. (R. 24).
The record reflects that at the time plaintiff was diagnosed with chronic sciatica on April 27,
2010, Dr. Moore described plaintiff’s pain as 7/10 with medication and 10/10 without medication.
(R. 399). However, at the time of this diagnosis, Dr. Moore did not increase the dosage of plaintiff’s
prescriptions for either Oxycontin or Percocet. (R. 399-400). Furthermore, none of Dr. Moore’s
treatment notes contain any information about plaintiff’s functional abilities as affected by chronic
sciatica. (See R. 399-400). Dr. Moore’s March 2011 opinion about the severity of plaintiff’s
impairment is not “well-supported by medically acceptable clinical and laboratory diagnostic
techniques,” 20 C.F.R. § 404.1527(c)(2), and thus the ALJ properly accorded “significantly less
weight” to this opinion. Craig, 76 F.3d at 590.
In addition, as noted in the M&R, Dr. Moore’s March 2011 opinion is inconsistent with
substantial evidence in the record from other medical sources. The M&R provides a detailed listing
of the specific portions of the record that contradict Dr. Moore’s opinion. (See M&R 14).
Particularly noteworthy are the treatment notes following an August 6, 2010, emergency room
examination by Dr. Jazman Beach. (R. 448). Plaintiff went to the emergency room on this date
because he started experiencing chest pain while playing golf. (R. 442). Dr. Beach examined
plaintiff and noted that his musculoskeletal system was normal, having “normal ROM, normal
strength, no tenderness, no swelling, no deformity.” (R. 448). Playing golf is inconsistent with Dr.
Moore’s opinion that plaintiff should never perform bending movements. Furthermore, there is no
evidence in the record of deterioration in plaintiff’s condition from the time he played golf in August
2010 until Dr. Moore’s opinion in March 2011.
Dr. Moore’s May 2011 opinion is contained in a May 13, 2011, letter to an unidentified
entity, wherein Dr. Moore expressed the opinion that plaintiff’s “problems prohibit him from taking
adequate care of his young son.” (R. 638). The ALJ accorded little weight to this opinion because
it did not include specific functional limitations, and the definition of “adequate” is unclear and
conclusory. This opinion is not “well-supported by medically acceptable clinical and laboratory
diagnostic techniques,” 20 C.F.R. § 404.1527(c)(2),
and thus the ALJ properly accorded
“significantly less weight” to this opinion. Craig, 76 F.3d at 590. Dr. Moore does not present any
“relevant evidence” to support the opinion. See 20 C.F.R. § 404.1527(c)(3). The ALJ’s decision
to give little weight to this opinion is supported by the relevant regulatory factors that courts
evaluate in reviewing the weight given to medical opinions. See Johnson, 434 F.3d at 654 (listing
non-exclusive list of factors).
The ALJ listed the weight assigned to the treating source opinions and gave specific reasons
for discounting these opinions. The court’s duty is to determine if substantial evidence supports the
ALJ’s conclusion, not to “re-weigh conflicting evidence, make credibility determinations, or
substitute our judgment for that of the [Commissioner].” Craig, 76 F.3d at 589. Substantial
evidence in the record supported the decision to assign “little weight” to the treating source opinions.
Therefore, this objection is overruled.
The ALJ’s Credibility Determination
Next, plaintiff contends the ALJ wrongfully determined plaintiff’s credibility.
Federal regulations, 20 C.F.R. §§ 416.929 and 404.1529, “provide the authoritative standard
for the evaluation” of subjective complaints of pain and symptomology. Craig, 76 F.3d at 593.
“Under these regulations, the determination of whether a person is disabled by pain or other
symptoms is a two-step process.” Id. at 594. At step one, the ALJ must determine whether there
is objective medical evidence showing plaintiff has a medical impairment “which could reasonably
be expected to produce the pain or other symptoms alleged.” Id. (quoting 20 C.F.R. §§ 416.929(b)
& 404.1529(b)). “The finding that an individual’s impairment(s) could reasonably be expected to
produce the individual’s pain or other symptoms does not involve a determination as to the intensity,
persistence, or functionally limiting effects of the individual’s symptoms.” SSR 96-7p, 1996 WL
374186, at *2. At step two, if this threshold requirement is satisfied, then the ALJ “ must evaluate
the intensity, persistence, and limiting effects of the [plaintiff’s] symptoms.” Id.
If the objective medical record does not substantiate plaintiff’s statements regarding the
intensity, persistence, or functionally limiting effects of pain, then the ALJ must make a credibility
determination of plaintiff’s statements based on consideration of the entire case record, including
medical records, medical opinions, and plaintiff’s statements.2
404.1529(c) and 416.929(c).
Id.; see also 20 C.F.R. §§
The ALJ must delineate specific reasons for the credibility
determination. Id. A plaintiff’s allegations of pain and other symptoms
SSR 96-7p lists seven factors the ALJ
must consider in addition to the objective medical evidence when assessing the credibility of an
individual’s statements: (1) The individual’s daily activities; (2) The location, duration, frequency, and
intensity of the individual’s pain or other symptoms; (3) Factors that precipitate and aggravate the
symptoms; (4) The type, dosage, effectiveness, and side effects of any medication the individual takes
or has taken to alleviate pain or other symptoms; (5) Treatment, other than medication, the individual
receives or has received for relief of pain or other symptoms; (6) Any measures other than treatment
the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) Any other factors
concerning the individual’s functional limitations and restrictions due to pain or other symptoms.
See also 20 C.F.R. §§ 404.1529(c) and 416.929(c).
may not be discredited solely because they are not substantiated by objective
evidence of the pain itself or its severity, [but] they need not be accepted to the
extent they are inconsistent with the available evidence, including objective evidence
of the underlying impairment, and the extent to which that impairment can
reasonably be expected to cause the pain the [plaintiff] alleges [he] suffers.
Craig, 76 F.3d at 595.
Here, the ALJ considered plaintiff’s subjective symptoms that are associated with his
impairments, and found first that plaintiff had medically determinable impairments which reasonably
could be expected to cause the alleged symptoms. (R. 20-21). However, at the second step the ALJ
found that plaintiff’s statements as to the extent of his pain were not fully credible where they were
inconsistent with objective evidence of record. (R. 21).
Plaintiff contends the ALJ’s credibility determination at step two contradicts his finding at
step one, arguing that a favorable step one determination required objective medical evidence that
made it “reasonably likely” that plaintiff would have the pain alleged in the amount and degree
alleged. Therefore, he contends, it cannot also be true at step two that “his allegations are
inconsistent with the objective evidence of record.” (R. 21).
Plaintiff misapprehends the substance of the ALJ’s obligation in conducting the two-step
evaluation of subjective complaints of pain. “The finding that an individual’s impairment(s) could
reasonably be expected to produce the individual’s pain or other symptoms does not involve a
determination as to the intensity, persistence, or functionally limiting effects of the individual’s
symptoms.” SSR 96-7p, 1996 WL 374186, at *2 (emphasis added). Accordingly, when the ALJ
decided step one in plaintiff’s favor, he only determined whether plaintiff’s medical impairments
“could reasonably be expected to produce” the symptoms alleged. Craig, 76 F.3d at 594. However,
“[i]t is only after a claimant has met [his] threshold obligation [at step one] . . . that the intensity and
persistence of the claimant’s pain, and the extent to which it affects [his] ability to work, must be
evaluated.” Id. at 595 (second emphasis added). Thus, a favorable decision at step one does not
determine whether plaintiff’s complaints regarding the “intensity, persistence, or functionally
limiting effects” of his pain are credible.
The portion of the ALJ’s decision cited by plaintiff reflects the ALJ’s determination that
plaintiff’s allegations regarding the limiting effects of his symptoms are not credible. The ALJ made
his credibility determination based on consideration of the entire case record, looking at the factors
listed in the regulations, such as plaintiff’s daily activities. SSR 96-7p, 1996 WL 374186, at *3.
For example, as noted by the ALJ, plaintiff testified that he went golfing in August 2010, and is able
to attend his children’s inside extra-curricular events and drive a vehicle. (R. 23). The ALJ’s
decision regarding the credibility of plaintiff’s statements is supported by substantial evidence in
the record. Accordingly, this objection is overruled.
The ALJ’s Reliance on VE Testimony
Plaintiff contends the ALJ failed to elicit sufficient testimony from the VE regarding how
plaintiff can work while standing if he uses one hand to hold a cane. Plaintiff argues the
hypothetical questions posed to the VE do not adequately reflect his RFC as determined by the ALJ.
While a claimant has the burden at steps one through four of the sequential evaluation
process, it is the Commissioner’s burden at step five to show that work the claimant is capable of
performing is available. Pass, 65 F.3d at 1203. A hypothetical question is proper if it adequately
reflects a claimant’s RFC for which the ALJ had sufficient evidence. See Johnson, 434 F.3d at 659
(determining hypothetical question was valid where it adequately reflected plaintiff’s RFC as
determined by the ALJ from substantial evidence in the record).
In response to the ALJ’s first hypothetical question, the VE testified that a hypothetical
individual with some of the functional limitations noted by the ALJ, not including need for an
ambulatory device, could not perform plaintiff’s past work. However, the VE named the following
three jobs that such an individual could perform: protective clothing issuer, ticket clerk, and ticket
stamper. (R. 65). The ALJ’s second hypothetical question asked the VE to consider whether any
of these three jobs would accommodate a sit or stand option. A job with a sit or stand option does
not require permission to sit and/or stand, and job-related tasks can be performed while sitting or
standing. (R. 65). The VE stated that although the definitions of the three jobs in the Dictionary of
Occupational Titles does not mention a sit or stand option, these jobs
would provide an employee with at [sic] table that is waist high or a stool and chairs
for the individual to be able to change positions, as long as they did not leave the
work station. In reference to the protective clothing issuer, the individual would
have an opportunity to sit when they were not gathering the garments that would
need to be issued to other employees.
The ALJ’s third hypothetical question inquired about whether these jobs would
accommodate the use of an assistive device such as a cane. The ALJ specifically asked the
following: “Now assume that this individual would require the assistance of an ambulatory device.
By ambulatory device I mean a cane for ingress and egress of the work place. Would that change
the sampling?” (R. 66). The VE responded that this additional limitation would not change the
sampling. (R. 66). The VE also stated that although most light work jobs “require that an individual
be able to walk and ambulate and carry with both hands throughout a large portion of the day,” the
three sample jobs do not have this requirement. (R. 66).
The ALJ’s third hypothetical question only addressed plaintiff’s need to use a cane for
ingress and egress of the workplace. (R. 66). However, plaintiff’s RFC dictates that he “must use
an assistive device such as a cane while working.” (R. 24) (emphasis added). In addition, the ALJ’s
RFC finding states that plaintiff must have a sit or stand option and that he must use an assistive
device such as a cane “while working.” (R. 20). Plaintiff contends the third hypothetical question
does not address circumstances in which plaintiff would need to use the cane while standing, which
would constitute use of the cane “while working,” which in turn is the condition under which the
ALJ determined plaintiff needs to use the cane. (See R. 20). Although the VE stated that the three
sample jobs do not require an individual to “ambulate and carry with both hands throughout a large
portion of the day,” this response and the record do not indicate whether the three sample jobs cited
by the VE can be performed while standing with the assistance of a cane, with only one hand
unoccupied and available for work activities. (R. 66).
The hypothetical questions posed by the ALJ do not adequately reflect plaintiff’s RFC as
determined by the ALJ. Specifically, the question related to whether the three sample jobs would
accommodate use of a cane only addressed whether a cane could be used for ingress and egress of
the workplace. However, the RFC states plaintiff must use an assistive device such as a cane “while
working,” which encompasses more than mere ingress and egress of the workplace. Although
defendant contends the RFC finding does not contemplate an inability to stand without a cane, the
RFC finding states that plaintiff must use an assistive device such as a cane “while working,” which
pursuant to the RFC finding can be done in either a sitting or standing position. The RFC finding
does not reflect whether plaintiff is capable of standing without the use of an assistive device such
as a cane.
Because the hypothetical questions do not adequately reflect plaintiff’s stated RFC, the ALJ
was not entitled to rely on the responses from the VE in determining plaintiff could perform the
three sample jobs. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (stating that an ALJ errs
when he or she makes findings at step five based on a VE’s answers to a hypothetical question that
did not reflect each limitation caused by a claimant’s impairments). Accordingly, defendant has
failed to carry her burden at step five of the sequential evaluation. Thus, this issue warrants remand
for further proceedings. On remand, the ALJ should clarify the meaning of his RFC finding with
regard to plaintiff’s need for an ambulatory device, and the hypothetical questions posed to the VE
should reflect this clarification.
Upon de novo review of those portions of the M&R to which specific objections have been
filed, and upon considered review of those portions of the M&R to which no such objection has been
made, the court REJECTS the recommendation of the magistrate judge (DE 31), GRANTS
plaintiff’s motion for judgment on the pleadings (DE 25), DENIES defendant’s motion for judgment
on the pleadings (DE 28), and REMANDS this matter pursuant to sentence four of 42 U.S.C. §
405(g) for further proceedings in accordance with this order. The clerk is DIRECTED to close this
SO ORDERED this the 20th day of August, 2014.
LOUISE W. FLANAGAN
United States District Judge
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