Steward v. Astrue

Filing 49

ORDER denying 42 Motion for Judgment on the Pleadings; granting 44 Motion for Judgment on the Pleadings; and, adopting 47 Memorandum and Recommendations - Signed by District Judge Louise Wood Flanagan on 02/22/2012. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No.5:11·CV-87-FL

EUNICE M. STEWARD,
Plaintiff,

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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ORDER

This matter comes before the court on the parties' cross motions for judgment on the
pleadings (DE # 42, 44). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Robert B. Jones, Jr. entered memorandum and recommendation
("M&R") wherein he recommends that the court deny plaintiff's motion, grant defendant's motion,
and uphold the final decision ofthe Commissioner of Social Security ("Commissioner"). Plaintiff
timely filed objection to the M&R to which defendant did not respond. In this posture, the issues
raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the
magistrate judge.

BACKGROUND
Plaintiff filed an application for Supplemental Security Income ("SSI") and disability
insurance benefits ("DIB") on June 19,2009, alleging a disability onset date of December 15,2008.
Her claim was initially denied and upon reconsideration. Hearing was held before an Administrative
Law Judge ("ALJ") on August 17, 2010, at which plaintiff was represented by counsel and a

vocational expert ("VE") appeared and testified. The ALJ issued decision denying plaintiff's request
for benefits. On January 10,2011, the Appeals Council ("AC") denied plaintiff's request for review.
Plaintiff filed complaint in this court for review of the final administrative decision.
A detailed summary of the procedural and factual history of the case is found in the M&R.
(See M&R 4-15.) Plaintiff does not object to the same, and as such, the factual history of the case
as set forth in the M&R is incorporated by reference herein.

DISCUSSION

A.

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 is ... such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389,401 (1971) (quotations 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 ofthe 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 [ofthe motions for judgment on the pleadings]." See 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 ofthe report or specified proposed
findings or recommendations to which objection is made." Id. § 636(b)( 1)(C). Absent a specific and
timely filed objection, the court reviews only for "clear error," and need not give any explanation for
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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)(C).
The ALl'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 her past relevant
work; and (5) the claimant can perform other specified types of work.

Johnson v. Barnhart, 434 F.3d 650, 654 n.l (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 was not engaged in gainful employment. At step two, the ALJ found that
plaintiff suffered from various impairments, including fibromyalgia, leukopenia, anemia, connective
tissue disease, degenerative disc disease, headaches, and depression. However, at step three, the ALJ
further determined that these impairments were not severe enough to meet or medically equal one
of the impairments in the regulations.
Prior to proceeding to step four, the ALJ determined that plaintiffhad the residual functional
capacity ("RFC") to perform light work involving simple, routine and repetitive tasks and occasional
contact with co-workers and the public subject to the following physical limitations: occasionally
climbing ramps or stairs, never climbing ladders, ropes, or scaffolds, frequently balancing, stopping,
kneeling, crouching, or crawling, frequent bilateral fingering and handling occasional reaching above
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the head. The ALJ then determined that plaintiff could not perform her past relevant work, but based
on the testimony of a vocational expert ("VE"), jobs exist in significant numbers in the national
economy that plaintiff can perform. The ALJ determined that plaintiff was not under a disability at
any time through the date of his decision.

B.

Analysis
1.

Evaluation of Plaintiffs Treating Physician

Plaintiffs first objection is that the magistrate judge erred in determining that the ALJ
properly evaluated the opinion ofplaintiff s treating physician, Dr. Maria Watson. Plaintiff contends
that the magistrate judge applied in the incorrect legal standard, and that in this case, Dr. Watson's
opinion was entitled to "controlling" weight. (PI.' s Obj. 1.) Plaintiff misstates the law ofthis circuit.
The Fourth Circuit has held that a treating physician's opinion in entitled to controlling weight only
if it is supported by clinical and laboratory diagnostic techniques, and if it is not inconsistent with
other evidence. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); Garrett v. Astrue, 2012 WL
174655 at *3 (D.S.C. 2012); Ward v. Chater, 924 F.Supp. 53,55 (W.D.Va. 1996).
Plaintiff next states that the magistrate judge violated the Fourth Circuit's holding in Hyatt
v. Sullivan, 899 F.2d 329 (4th Cir. 1990), by requiring lab tests or clinical findings from Dr. Watson
confirming the severity of plaintiffs symptoms. Plaintiffs objection attempts to conflate the
magistrate judge's analysis as to two different issues: the weight to be given the treating physician's
opinion and the assessment of plaintiffs credibility. Upon careful reading of the M&R, the court
finds that the magistrate judge was not imposing a higher standard on plaintiffs credibility, but
rather was explaining why Dr. Watson's opinion was not entitled to controlling weight, as plaintiff
argues it should be. Based on precedent from this circuit which requires clinical or laboratory tests
to give a treating physician's opinion controlling weight (noted above), the magistrate judge found
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that such weight was not warranted in this case because ofthe lack ofthe required clinical evidence.
The magistrate judge was not imposing upon plaintiff a requirement to show objective evidence as
to pain intensity, as is prohibited by Hyatt, 899 F.2d at 333-34.
The court finds that the magistrate judge engaged in a well-supported analysis of Dr.
Watson's opinion. (See M&R 8-14.) Plaintiff argues that the magistrate judge engaged in "post hoc
rationalization" by pointing out specific facts in the record that did not support Dr. Watson's
conclusions that plaintiff could work zero hours in a day, yet fails to point to any specific evidence
in the record that would support Dr. Watson's opinion. Plaintiffs objections as to the weight to be
given the treating physician's opinion are overruled.
2.

Assessment of Plaintiffs Credibility

Plaintiff again accuses the magistrate judge of engaging in post hoc rationalization for not
assigning more significance to the fact that the ALJ did not specifically mention plaintiffs June
2009, hospitalization for anemia. The magistrate judge, however, correctly points out that the ALJ
considered plaintiff s history ofproblems with anemia and specifically cited to the medical evidence
subsequent to the 2009 hospitalization that reflected that plaintiffhad significantly improved and that
her condition was stable. (R. 514, 660.) Plaintiff argues that the ALJ was required to mention the
2009 hospitalization to engage in a meaningful discussion of "important evidence." However, in
light ofthe explicit reference to plaintiff s improvement with anemia in October 2009, and February
2010, plaintiff again fails to show why specific mention of the hospitalization was required. I
Plaintiff objects to the magistrate judge's discussion of the ALl's findings regarding

1 The court also notes that plaintiff cites a Seventh Circuit case, Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007), to
argue that the ALJ' s failure to mention the June 2009, hospitalization resulted in a failure to conduct a meaningful review
considering important evidence. Upon review ofthe Giles case, it appears that the ALJ in that case merely recited some
portions ofthe claimant's testimony but did not make findings regarding the claimant's credibility. 483 F. 3d at 488-89.
The court fmds the presents case distinguishable in that here, the ALJ conducted a detailed assessment of plaintiff's
credibility, citing specific evidence from the record to support his findings. (R. 19-21.)

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plaintiffs credibility as to the pain she experiences from connective tissue disease and degenerative
disc disease. First, plaintiff argues that the magistrate judge's analysis did nothing to resolve what
plaintiff contends is a glaring inconsistency in the ALl's analysis - finding on one hand that plaintiff
has the severe impairment of connective tissue disease (R. 17), and finding on the other hand that
plaintiffs limitations due to pain from connective tissue disease were not as severe as alleged. (R.
20.) The court disagrees. The magistrate judge evaluated the ALl's finding of tissue disease in
conjunction with the subsequent findings that plaintiffs claims as to the severity ofthe disease were
not credible. This evaluation does not defy logic; but rather, shows a careful consideration of the
evidence in the record under the appropriate standards at steps two and four.
To the extent finding an impairment oftissue disease and subsequently discounting plaintiff s
complaints of the same is inconsistent, the magistrate judge further noted that diagnosis of a
condition is not enough to prove disability because there must be a showing of related functional
loss. Gross v. Heckler, 785 F.2d 1163,1166 (4th Cir. 1986). Plaintiff offers no argument or case
law to contest this authority. Without more, where the substantial evidence in the record supports
the ALl's determination (R. 455-56, 502, 514, 523, 633), the court overrules the objection.
Next, plaintiff suggests that the magistrate judge did not address the ALl's "seemingly willful
blindness" to a March 2010 MRl plaintiff had showing cervical involvement that plaintiff contends
shows objective medical evidence supporting the her complaints ofpain related to degenerative disc
disease. The magistrate judge found that the ALl's failure to cite to this particular procedure was
unremarkable, especially where the ALl cited to other specific evidence in the record of plaintiff s
cervical spine pain, including reports from other physicians acknowledging the March 1,2010, MRl.

CR. 20, 696.)

Plaintiff vehemently objects to the magistrate judge's analysis on this point, arguing

that the ALl was required to mention the March 1, 2010, MRl. The court disagrees.

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As a preliminary matter, the court finds nothing lacking in the ALl's analysis or the
magistrate judge's conclusions regarding the same. The ALJ cited to specific portions of the record
with evidence from different time periods, providing a landscape ofevidence for the conclusion that
overall, plaintiffs complaints of pain due to degenerative disc disease were not credible.
Furthennore, the court notes that plaintiffs memorandum in support ofthe motion for judgment on
the pleadings describes the March 1, 2010, MRl as "show[ing] deformity of the spinal cord due to
disc bulging in [plaintiffs] upper spine." (Pl.'s Mem. 13.) Upon review of the records cited by
plaintiff for this proposition, the court disagrees that they reveal such dramatic cervical damage as
plaintiff suggests. Rather, the MRl results note that the cervical cord is "intrinsically unremarkable
in appearance," "no significant central canal or foraminal compromise," and "no disk protrusion
evident." (R. 645-46, 677-78.) Thus, aside from the ALl's failure to specifically cite this MRl in
his opinion, the evidence that plaintiff so vehemently contends the ALJ should have included is itself
not compelling, especially when considered with the other evidence ofrecord that discounts the level
of pain plaintiff described from the disc disease. (R. 629, 632-33,645,648,659.)
Plaintiff next 0 bjects to the magistrate judge's analysis ofthe ALl's detenninations regarding
her fibromyalgia. Contrary to what plaintiff suggests, the court finds that the magistrate judge
engaged ina careful analysis of plaintiff s fibromyalgia, noting the applicable case law which notes
that nonnal clinical findings are not uncommon in fibromyalgia patients, (M&R 19 n.5), and thus
a more exacting analysis is required for a claimant's descriptions of pain. The magistrate judge
thereafter engaged in an analysis ofthe limited evidence plaintiff did offer to argue that the pain from
her fibromyalgia causes her functional loss greater than what was found by the ALJ. The magistrate
judge appropriately weighed Dr. Watson's opinion, the only concrete evidence plaintiff offered to
show that the pain from the fibromyalgia was of a level warranting a finding ofdisability. As noted
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in detail in the M&R, and adopted here, Dr. Watson's opinion was not entitled to controlling weight,
and without more, plaintiffs contentions regarding disability as a result of fibromyalgia are
insufficient to disturb the ALl's findings.
Plaintiff offers argument in her objection that while she does not dispute the ALl's findings
regarding her depression, taken in conjunction with her other impairments, her depressive symptoms
render her disabled. Ultimately, plaintiff asks the court to re-weigh evidence considered by the ALJ
to come to a different conclusion. The court reminds that "[i]n reviewing and ALJ's finding for
substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for that ofthe Secretary." Mastro v. Apfel,
270 F.3d 171, 176 (4th Cir. 2001) (citing Craig, 76 F.3d at 589).
Plaintiff also disputes the ALJ' s characterization ofplaintiff s involvement with the day care.
The court agrees with the magistrate judge that in the face of somewhat conflicting evidence
regarding plaintiff s involvement or lack thereof with the daycare, the ultimate determination for this
court to make is whether the credibility finding was supported by the substantial weight of the
evidence, which, as set forth herein, the court finds was so supported.
3.

RFC Determination2

Plaintiffs final objection is a general objection that the ALJ did not properly calculate
plaintiff's RFC because the ALJ considered medical evidence separately and not as a whole in
determining whether plaintiff was disabled. Plaintiff does not offer specific citation to the record
in support ofwhy the ALl's RFC determination was incorrect; rather, plaintiff merely states that the
RFC determination was wrong.

The heading for plaintiffs third objection is the exact same as the heading for the first objection, yet the substance of
the third objection criticizes the magistrate judge's evaluation of the ALJ's RFC determination. Where the heading is
most likely a typo, it is disregarded.

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When a claimant has a number of impairments, some considered not severe, the ALl must
consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(b);
Hines v. Bowen, 872 F.2d 56,59 (4th Cir. 1989) (citations omitted) ("[I]n determining whether an
individual's impairments are of sufficient severity to prohibit basic work related activities, an ALl
must consider the combine effect of a claimant's impairments."). An ALl is deemed to have given
sufficient consideration ofthe combined effects ofa claimant's impairments when each is separately
discussed in the ALl's decision, including discussion of a claimant's complaints of pain and level
of daily activities. Baldwin v. Barnhardt, 444 F.Supp.2d 457, 465 (E.D.N.C. 2005). The forgoing
case law, also cited by the magistrate judge, merits citation again to reinforce the relevant standard
for determining an RFC, which plaintiff does not contest.
Plaintiff makes the same argument in her 0 bj ection that she made in her motion for judgment
on the pleadings, that the ALl did not consider the cumulative effects of her impairments. Plaintiff
cites dicta from a Seventh Circuit case to argue that the ALl considered disparate facts with no
logical connection between them. See Blakes ex reI. Wolfe v. Barnhardt, 331 F.3d 565, 569 (7th Cir.
2003). Blakes is factually distinguishable where the ALl in that case made unsubstantiated
assumptions about severe speech and language disorders and their connection to mental retardation.
Id. Plaintiff offers no other support for the allegation that the ALl did not consider the combined
effect ofplaintiffs limitation in evaluating the RFC. The court finds the magistrate judge's analysis
on the point reasoned and well supported. As such, this objection is overruled.

CONCLUSION
Upon de novo review of those portions of the magistrate judge's 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 ADOPTS the findings and recommendations of the
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magistrate judge in full, GRANTS defendant's motion for judgment on the pleadings (DE # 44),
DENIES plaintiffs motion for judgment on the pleadings (DE # 42), and upholds the final decision
of the Commissioner. The Clerk is directed to close this case.

J

SO ORDERED this th~,.1 day of February, 2012.

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UlSW. FLANAGAN

United States District Judge

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