Lockowitz v. Colvin

Filing 25

ORDER adopting Report and Recommendations re 22 Memorandum and Recommendations; denying 16 Motion for Judgment on the Pleadings; granting 18 Motion for Judgment on the Pleadings. Signed by Senior Judge James C. Fox on 2/22/2017. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:15.,CV-00190-F
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RICHARD LOCKOWITZ,
Plaintiff/Claimant,
V.

NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant..

ORDER

Before the court are the following:
(1) the Memorandum and Recommendation ("M&R") [DE-22] of United
States Magistrate Judge Robert B. Jones, Jr.; and
(2) the parties' cross Motions for Judgment on the Pleadings [DE-16, -18].
The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons addressed
below, this court ADOPTS the findings and recommendations of the Magist5ate Judge, Plaintiffs
Motion for Judgment on the Pleadings [DE-16] is DENIED, Defendant's Motion for Judgment on
the Pleadings [DE-18] is ALLOWED, and the Commissioner's final decision is AFFIRMED.

I. Discussion
A. Magistrate Judge's M&R
1. Legal Standard
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.

See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo
1

Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill, Acting
Commissioner of Social Security, has been added as a party. Carolyn W. Colvin's term expired
on January 20, 2017, and she has been terminated as a party.

determination of those portions of the recommendation to which specific objections are made, and
the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation,
or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1 ). In the
absence of a timely-filed objection, a district court need not conduct a de nova review, but instead
must "only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation." Diamond v. Colonial Life & Acc. Ins. Co., 416 F .3d 310, 315 (4th Cir. 2005).
On January 26, 2017, the Magistrate Judge issued a M&R, in which he recommended that
Plaintiff's Motion for Judgment on the Pleadings [DE-16] be denied, Defendant's Motion for
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Judgment on the Pleadings [DE-18] be allowed, and the Commissioner's final decision be affirmed.
The Magistrate Judge advised the parties of the procedures and requirements for filing objections
to the M&R and the consequences if they failed to do so. Plaintiff filed Objections [DE-23], to
which Defendant filed a Response [DE-24].

2. Plaintiff's Objections
a. Plaintiff argues that the Magistrate Judge erred by finding that the decision of the
Administrative Law Judge ("ALJ") to afford the opinion of treating physician Dr.
Rickabaugh only some weight was not error.
In his first objection, Plaintiff argues that the Magistrate Judge erred by finding that the
ALJ's decision to afford the opinion of Dr. Rickabaugh only some weight was not error.
Objections [DE-23] at 1-3. In particular, Plaintiff contends that the ALJ's opinion and the
Magistrate Judge's M&R reflect that they misunderstood Dr. Rickabaugh's usage of the term
"activities of daily living." Id. at 1.
Pursuant to the regulations, an ALJ is required to evaluate every medical opinion, regardless
of its source. 20 C.F.R. § 404.1527(c). When a treating physician's opinion on the nature and

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severity of a claimant's impairments is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence," it must
be given "controlling weight." 20 C.F.R. § 404.1527(c)(2); Mastro v. Apfel, 270 F.3d 171, 178 (4th
Cir. 2001 ). A treating physician's opinion should be given "significantly less weight" when it is not
supported by clinical evidence or is inconsistent with other substantial evidence. Craig v. Chafer,
76 F.3d 585, 590 (4th Cir. 1996). When an ALJ discounts the opinion of a treating source, he must
give."good reasons" for doing so. 20 C.F.R. § 404.1527(c)(2); Anderson v. Astrue, No. 3:11-CV250-JAG, 2012 WL 4498920, at *5 (E.D. Va. Sept. 28, 2012).
John Rickabaugh, M.D., a physician with board certification in family medicine, began
treating Plaintiff in July 2011. (R. 409). On July 3, 2013, Dr. Rickabaugh completed a medical
source statement, in which he noted that Plaintiff suffered with "constant" low back pain with
radiation into the left buttock, left thigh, and left leg. (Tr. 3 86-89). While concluding that Plaintiff's
prognosis for activities of daily living with medication was "good," Dr. Rickabaugh also opined that
Plaintiff was unable to obtain and retain work in a competitive environment eight hours a day for
five days a week for a continuous period of six months or more. (Tr. 386, 389).
On January 8, 2014, Dr. Rickabaugh provided a written statement on Plaintiffs behalf. (Tr.
409-11 ). Dr. Rickabaugh' s written statement referenced and elaborated on his July 3, 2013 medical
source statement and explained that Plaintiff's diagnoses were degenerative disc disease of the
lumbar spine, back pain, non-infectious hepatitis, left ventricular hypertrophy with diastolic
dysfunction, and chronic liver disease. (Tr. 409). Dr. Rickabaugh did not believe that Plaintiff had
been able to work eight hours per day for five days per week on a regular basis since September
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2011. (Tr. 411). Dr. Rickabaugh opined that Plaintiff experienced limitations on sitting and

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standing. (Tr. 409). In particular, Plaintiff needed to lie down or recline due to his back pain for
approximately four hours in an eight-hour workday, in addition to three to four thirty-minute breaks
where he could lie down or recline. Id. Plaintiff also needed to be able to lie down or recline as
needed to relieve pain. (Tr. 410). Dr. Rickabaugh explained that he did not expect Plaintiffs
condition to improve, Plaintiff had tried physical therapy, and Plaintiff had been unable to try
epidural injections because of his low platelet counts. Id. Dr. Rickabaugh noted that at Plaintiffs
last appointment, they discussed the possibility of surgery, and Plaintiff was referred for a surgical
consultation. Id.
The ALJ gave Dr. Rickabaugh's January 8, 2014 opinion "some weight, but not
controlling weight." (Tr. 29). In support of this conchisio~, the ALJ provided the following
explanation:
· The portion of his opinion regarding the nature and type of the claimant's physical
impairments is consistent with the longitudinal history. However, the portion of his
opinion regarding the extent of the claimant's physical functional limitations is not
fully consistent with the claimant's treatment records throughout the period in
question. For example, the claimant's examination findings and treatment records .
. . do not support a finding that the claimant needs to lie down or recline due to his
back pain for approximately 4 hours in an 8-hour workday in addition to having 3-4
breaks, 30 minutes each, where he could lie down or recline. In addition, this opinion
is not supported with Dr. Rickabaugh's prognosis noted in the Physical Residual
Function Capacity Medical Source Statement (Exhibit 9F). For instance, Dr.
Rickabaugh stated that the claimant's prognosis was good for activities of daily living
function with medications. The undersigned notes that such overly restrictive
limitations on the claimant's abilities to sit and stand, and the amount of time Dr.
Rickabaugh stated the claimant needed to lie down, are inconsistent with those of
someone with a good prognosis for activities of daily living function with
medications. An individual functioning sufficiently independently in their activities
of daily living would not appear to need such restrictive sitting/reclining limitations.
Dr. Rickhaugh's [sic] medical source statement is also not fully consistent with the
treating notes indicating negativeparesthesias and weakness, normal gait, and normal
muscle strength and tone despite complaints of chronic pain. There are references
also to effective pain medication (Ex. 6F, pages 9-11 ). Subsequent treating notes
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inClude includes [sic] some of the same normal and negative findings (Ex. llF).
Moreover, the exertional restrictions in the residual functional capacity adequately
account for the claimant's musculoskeletal impairments.
Id.

Plaintiff takes issue with the ALJ' s finding that Dr. Rickabaugh' s opinion that he had a good
prognosis for activities of daily living with medication is inconsistent with Dr. Rickabaugh' s opinion
that Plaintiff needs to lie down or recline due to his back pain for approximately four hours in an
eight-hour workday, in addition to having three to four breaks for thirty minutes each where he could
lie down or recline. Objections [DE-23] at 1.
Plaintiffs argument has no merit. As the Magistrate Judge pointed out, Plaintiffs "good"
prognosis for performing activities of daily living is relevant to his residual functional capacity
("RFC"). M&R [DE-22] at 9; see SSR 96-8p, 1996 WL 374184, at *5 (noting that the RFC
assessment must be based on all relevant evidence in the record, which includes "[r]eports of daily
activities"). Moreover, Dr. Rickabaugh's opinion that Plaintiff had a "good" prognosis for daily
activities, when compared to the other extreme limitations he imposed, goes to the inconsistency of
Dr. Rickabaugh's opinion. M&R [DE-22] at 9; see 20 C.F.R. § 1527(c)(4) ("Generally, the more
consistent a medical opinion is with the record as a whole, the more weight we will give to that
medical opinion."). Consequently, Plaintiffs first objection is overruled.

b. Plaintiff argues that the ALJ and the Magistrate Judge failed to address the issue
of further injury when deciding the normal findings in the record outweighed the
negative findings.
In his second objection, Plaintiff argues that the ALJ and the Magistrate Judge failed to
address the issue of further injury when deciding that the normal findings in the record outweighed

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negative findings. 2 Objections [DE-23] at 2-3. According to Plaintiff, the ALJ merely substituted
her own opinion for that of Plaintiffs treating physician. Id. at 3.
Referring to records from Susan Vettichira, M.D., a physician board certified in physical
medicine and rehabilitation, and Dr. Rickabaugh, the ALJ noted that Plaintiffs "[p]hysical
examinations routinely reveal back pain on range of motion, slightly reduced strength findings, joint
stiffness and anxiety (Exhibit[s] 3F, 8F)." (Tr. 28). The ALJ acknowledged that imaging studies
revealed multilevel spondylosis with moderate to severe neuro-foraminal narrowing, which is
greatest at L4-5 and L5-Sl, and mild degenerative changes in the hips. Id.
The Magistrate Judge pointed out that the ALJ did not rely on normal examination
findings to the exclusion of the other evidence. M&R [DE-22] at 10. The Magistrate Judge
noted that the ALJ explained that despite Plaintiffs musculoskletal impairments, Dr.
Rickabaugh' s severe restrictions were not supported by his treatment notes. Id. (citing Tr. 29).
For example, Plaintiffs physical findings generally reveal a well-developed and well-nourished
individual in no

obviou~

distress. Id. (citing Tr. 28). Also, Plaintiffs musculoskeletal findings

reveal a normal gait, full muscle strength in all major muscle groups, normal tone overall, and no
apparent tremor. Id. (citing Tr. 28). Plaintiffs mental status examinations were routinely
normal, and treatment records indicate his medication regimen, when taken as prescribed, was
helpful in alleviating his symptoms. Id. Plaintiffs most recent physical examination findings
continue the trend of effective and conservative treatment. Id. (citing Exhibit 1 lF). On July 3,
2013, Plaintiff had stable and non-progressive degenerative disc disease of the lumbar spine with

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The exact basis of Plaintiffs second objection is not completely clear to this court.
Plaintiffs counsel is advised that it would help this court if she would use headings and
introductions such as, "Plaintiffs first objection is .... "
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no change to his medicine regimen. Id (citing Exhibit lOF/17). On January 14, 2014, Plaintiff
was seen for complaints of constant and moderately intense throbbing and aching in his left,
lower lumbar spine. Id The physical examination revealed a stable condition. Id Plaintiffs
medication regimen was continued, and he was advised to avoid overexertion and reinjury. Id
(citing Exhibit 1 lF). The ALJ concluded that the above-stated findings and conservative
measures supported her view that Plaintiffs treatment regimen has been generally successful
throughout the time period in question. Id
Plaintiffs argument that the ALJ and Magistrate Judge failed to address the issue of
further injury lacks merit. As the Magistrate Judge pointed out, "[i]t is insufficient for the
[Plaintiff] to point to other record evidence and argue that the ALJ's decision is unfounded."
M&R [DE-22] at 11. Plaintiffs argument is essentially an invitation to reweigh the evidence in
·this case, and that is something this court cannot do. See Hancockv. Astrue, 667 F.3d 470, 478
(4th Cir. 2012) ("We must sustain the ALJ's decision, even if we don't agree with it, provided
the determination is supported by substantial evidence." (citation omitted)); Smith v. Chafer, 99
F.3d 635, 638 (41h Cir. 1996) (same). Accordingly, Plaintiffs second objection is overruled.
c. Plaintiff argues that the Magistrate Judge erred by finding that the ALJ's failure
to conduct a function-by-function analysis with respect to his ability to lift does not
require remand.

In his third and final objection, Plaintiff argues that the Magistrate Judge erred by finding
that the ALJ's failure to conduct a function-by-function analysis with respect to his ability to lift
does not require remand. Objections [DE-23] at 3-5.
In Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit Court of Appeals
addressed whether an ALJ's failure to perform a function-by-function assessment required remand.

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Id at 636-37. The Court held that "a per se rule [requiring remand when the ALJ does not perform
'1Il 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 at 636
(citation omitted). Even so, the Court agreed with the Second Circuit that "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 (citation omitted).
After discussing Plaintiffs symptoms and the medical and opinion evidence offered, the ALJ
determined that Plaintiff was capable of lifting and/or carrying ten pounds frequently and twenty
pounds occasionally. (Tr. 26-30). In so finding, the ALJ relied in part on the opinion of state agency
physician Stephen Levin, M.D. that Plaintiffwas capable oflifting at the light level of exertion. 3 (Tr.
28). The ALJ also found Plaintiff required a sit/stand option, which was based on new evidence that
was not considered by Dr. Levin. (Tr. 28-29).
The Magistrate Judge found that in light of the reasons explained in the discussion of Dr.
Rickabaugh's opinion, the ALJ's omission did not frustrate meaningful review in this case. M&R
[DE-22] at 14. The Magistrate Judge further found that the ALJ's RFC analysis adequately
addressed Plaintiffs ability to lift and was supported by substantial evidence. Id The Magistrate
Judge concluded that the ALJ's failure to conduct a function-by-function analysis with respect to
Plaintiffs ability to lift did not warrant remand. Id at 15.
Plaintiff argues that the Magistrate Judge cited two inapposite cases in support of the

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"Light work" involves lifting no more than twenty pounds at a time with frequent lifting
or carrying of objects weighing up to ten pounds. 20 C.F.R. § 404.1567(b).
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proposition that the ALJ's reliance on a state agency physician's opinion obviates the need for the
ALJ to do a separate function-by-function analysis: Berry-Hobbsv. Colvin, No. 1:15CV01103,2016
WL 4621080 (M.D.N.C. Sept. 6, 2016), and Sineath v. Colvin, No. 1:16CV28, 2016 WL 4224051
(M.D.N.C. Aug. 9, 2016). Objections [DE-23] at 3-4. This reflects a misreading of the M&R.

Berry-Hobbs and Sineath were cited by the Magistrate Judge to support his conclusion that "[t]aken
as a whole, the ALJ' s RFC analysis adequately addresses [Plaintiffs] ability to lift and is supported
by substantial evidence." M&R [DE-22] at 14.
For the reasons addressed by the Magistrate Judge, the ALJ's failure to conduct a functionby-function analysis with respect to Plaintiff's ability to lift does not require remand. Consequently,
Plaintiff's third objection is overruled.

II. Conclusion
In light of the foregoing, and upon de novo review of the portions of the Magistrate Judge's
M&R to which specific objections were filed, the court ADOPTS the findings and recommendations
of the Magistrate Judge, Plaintiff's Motion for Judgment on the Pleadings [DE-16] is DENIED,
Defendant's Motion for Judgment on the Pleadings [DE-18] is ALLOWED, and the Commissioner's
final decision is AFFIRMED.
The Clerk of Court is DIRECTED to close this case.
SO ORDERED.
This, the 1~ day of February, 2017.

JJ@ES C.FOX
Senior United States District Judge

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