Dunn v. Astrue
Filing
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ORDER granting 24 Motion for Judgment on the Pleadings; adopting 27 Memorandum and Recommendations; and, denying 16 Motion for Judgment on the Pleadings - The final decision by defendant is affirmed. Signed by District Judge Louise Wood Flanagan on 3/14/2013. (Tripp, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 7:11-CV-132-FL
RONALD D. DUNN,
Plaintiff,
v.
CAROLYNW. COLVIN,
Commissioner of Social Security,
Defendant.
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ORDER
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This matter comes before the court on the parties' cross motions for judgment on the
pleadings (DE## 16, 24). 1 Pursuantto 28 U.S.C. § 636(b)(l) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge William A. Webb, entered memorandum and recommendation
("M&R") wherein he recommends that the court deny plaintiffs 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 adopts the recommendation of the magistrate judge.
BACKGROUND
Plaintiff filed an application for disability insurance benefits ("DIB") on March 11, 2004,
alleging that he became unable to work on December 6, 2003. This 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
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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 offonner Commissioner Michael J. Astrue.
12, 2006. On August 30, 2006, the Appeals Council ("AC") denied plaintiffs request for review.
Upon appeal to this court, plaintiffs claim was remanded for further administrative proceedings on
March 22, 2007. Plaintiffs claim was again denied in a decision dated May 9, 2008. On May 2,
2011, the AC denied plaintiffs request for review, rendering the ALJ's determination defendant's
final decision. Plaintiff filed complaint in this court on June 27, 2011, for review of the final
administrative decision.
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 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 [ofthe motions for judgment on the pleadings]." See 28 U.S. C.
§ 636(b)( 1)(B). The parties may objectto 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." ld. § 636(b)( l)(C). Absent a specific
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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 & Ace. 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 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, 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 had the following severe impairments: lumbar degenerative disc disease; hypertension; a
history of a fissure in ano; a history of anemia; and hepatitis C. 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
plaintiff had the residual functional capacity ("RFC") to perform light work with certain restrictions.
The ALJ determined that plaintiff could not perform his past relevant work, but that plaintiff could
adjust to the demands of other employment opportunities existing in significant numbers in the
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national economy. Accordingly, the ALJ determined that plaintiff was not under a disability during
the relevant time period.
B.
Analysis
Plaintiff objects to the magistrate judge's review of plaintiffs case, specifically, the
magistrate judge's: (1) review of plaintiffs credibility as to pain in light ofHines v. Barnhart, 453
F.3d 559 (4th Cir. 2006); and (2) review of the plaintiffs medical record, specifically the ALJ's
consideration of plaintiffs physicians' opinions under Social Security Ruling ("SSR") 96-2p. First,
plaintiff objects to the magistrate judge's determination that the ALJ properly assessed plaintiffs
credibility as to his level of pain. "The determination of whether a person is disabled by pain or
other symptoms is a two-step process." Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). First, the
ALJ must determine whether the plaintiff has a medical impairment "which could reasonably
expected to produce the pain or other symptoms alleged." ld. (quoting 20 C.F.R. §§ 416.929(b) &
404.1529(b)). Ifthis threshold question is satisfied, then the ALJ evaluates the actual intensity and
persistence of the plaintiffs pain or other symptoms, and the extent to which it affects her ability to
work. ld. at 595. At this second step, the ALJ considers "not only the claimant's statements about
her pain, but also 'all the available evidence,' including ... evidence of the claimant's daily
activities, specific descriptions of the pain, and any medical treatment taken to alleviate it." ld.
(citing 20 C.F.R. §§ 416.929(c)(2), 404.1529(c)(2)). A plaintiffs allegations of pain and other
symptoms "need not be accepted to the extent they are inconsistent with the available evidence,"
based on a consideration of the entire case record. Id.; see SSR 96-7p.
In this case, the ALJ considered plaintiffs subjective complaints associated with his
impairments, and found that plaintiff had medically determinable impairments which reasonably
could be expected to cause some of the alleged symptoms, but that the plaintiffs statements were
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not credible to the extent they conflicted with his level of activity and medical treatment, including
prescribed and over-the-counter medications. R. 232-36. Plaintiff argues that, upon establishing the
existence of an underlying condition with objective evidence, a claimant is entitled to rely entirely
upon subjective testimony to establish the severity of his symptoms. Hines, 453 F.3d at 565. In
Hines, the court noted that the claimant "was entitled to rely exclusively on subjective evidence to
prove the second part of the [Craig] test." Id. The court further explained that, "[w]hile objective
evidence is not mandatory at the second step of the test, this is not to say, however, that objective
medical evidence and other objective evidence are not crucial to evaluating the intensity and
persistence of a claimant's pain and the extent to which it impairs her ability to work." Id. at 565
n.3 (quoting Craig, 76 F.3d at 595). In accordance with Hines and Craig, the ALJ properly
considered the substantial evidence in the record tending to show that plaintiffs subjective
allegations of pain and other symptoms did not limit his ability to work to the full extent alleged.
Accordingly, plaintiffs first objection is overruled.
Second, plaintiff objects to the magistrate judge's determination that the ALJ properly
weighed the opinions of plaintiffs physicians. Though the opinion of a treating physician is
generally entitled to "great weight," the ALJ is not required to give it "controlling weight." Craig,
76 F.3d at 590; Hunterv. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). In fact, "if 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 a treating source's medical opinion
is well-supported and not inconsistent with the other substantial evidence in the case record, it must
be given controlling weight, i.e., it must be adopted." SSR 96-2p; see also Mastro v. Apfel, 270 F .3d
171, 178 (4th Cir. 2001) (holding that a treating physician's opinion in entitled to controlling weight
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only if it is supported by clinical and laboratory diagnostic techniques, and if it is not inconsistent
with other evidence).
When the ALJ does not give the opinion of a treating physician controlling weight, the ALJ' s
decision must contain "specific reasons for the weight given to the treating source's medical opinion,
supported by substantial evidence in the case record, and must be sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion
and the reasons for that weight." SSR 96-2p. The ALJ considered the opinions of plaintiffs treating
physicians, Dr. Williams and Dr. Ojebouboh, as well as a consulting physician, Dr. Murfin. R. 23236. Plaintiff argues that Dr. Williams's, Dr. Ojebouboh's, and Dr. Murfin's opinions should be
given controlling or substantial weight as to the extent of plaintiffs pain and ability to work. The
ALJ specified that Dr. Williams's opinion was given less weight because the ano fissure was
expected to heal with dietary management and plaintiff was not taking prescription pain medicine.
R. 235-36.
Similarly, Dr. Ojebouboh's opinion as to plaintiffs mobility and diagnosis of
radiculapathy was contradicted by medical examinations on October 3, 2005, and July 5, 2006. R.
236. Finally, the ALJ found that Dr. Murfin's evaluation of plaintiffs residual functional capacity
was contradicted by plaintiffs October 9, 2007, examination. Upon close scrutiny of the ALJ's
findings as well as the specific citations he made to the record, the court finds that he thoroughly
considered the factors required to be considered in not adopting these physicians' opinions. As such,
their opinions as treating physicians were not entitled to controlling weight. See Mastro, 270 F.3d
at 178. Therefore, plaintiff's second objection is also overruled.
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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
magistrate judge in full, DENIES plaintiffs motion for judgment on the pleadings (DE # 16),
GRANTS defendant's motion for judgment on the pleadings (DE# 24), and AFFIRMS the final
decision by defendant. The clerk is directed to close this case.
SO ORDERED this the ''(1\f day of March, 2013.
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