Gallagher v. Colvin
Filing
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ORDER denying 20 Motion for Summary Judgment and granting 21 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 4/26/2016. (Romine, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:15-CV-57-BO
JANET L. GALLAGHER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner ofSocial Security,
Defendant.
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ORDER
This cause comes before the Court on cross-motions for judgment on the pleadings. A
hearing was held on these matters before the undersigned on April 6, 2016, at Raleigh, North
Carolina. For the reasons discussed below, the decision of the Commissioner is affirmed.
BACKGROUND
Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the
final decision of the Commissioner denying her claim for disability and disability insurance
benefits (DIB) pursuant to Title II of the Social Security Act. Plaintiff filed for DIB on June 22,
2011, alleging disability since March 10, 2011. After initial denials, a hearing was held before
an Administrative Law Judge (ALJ) who then issued an unfavorable ruling. The ALJ's decision
became the final decision of the Commissioner when the Appeals Council denied plaintiffs
request for review on January 20, 2015.
Plaintiff then timely sought review of the
Commissioner's decision in this Court.
DISCUSSION
Under the Social Security Act, 42 U.S.C. § 405(g), and 1383(c)(3), this Court's review of
the Commissioner's decision is limited to determining whether the decision, as a whole, is
supported by substantial evidence and whether the Commissioner employed the correct legal
standard. Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is "such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Johnson v. Barnhart, 434 P.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and
citation omitted).
An individual is considered disabled if he is unable "to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual "shall be determined to be under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other line of substantial
gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation
process to be followed in a disability case. 20 C.P.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision
regarding disability can be made at any step of the process, however, the inquiry ceases. See 20
C.P.R.§§ 404.1520(a)(4), 416.920(a)(4).
At step one, if the Social Security Administration determines that the claimant is
currently engaged in substantial gainful activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination of impairments. If the claimant
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has a severe impairment, it is compared at step three to those in the Listing of Impairments
("Listing") in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively presumed.
If not, at step four, the
claimant's residual functional capacity (RFC) is assessed to determine if the claimant can
perform his past relevant work. If so, the claim is denied. If the claimant cannot perform past
relevant work, then the burden shifts to the Commissioner at step five to show that the claimant,
based on his age, education, work experience, and RFC, can perform other substantial gainful
work. If the claimant cannot perform other work, then he is found to be disabled. See 20 C.F .R.
§ 416.920(a)(4).
At step one, the ALJ determined that plaintiff met the insured status requirements and
had not engaged in substantial gainful activity since her alleged onset date. Plaintiffs lumbar
degenerative disc disease, diabetes with diabetic neuropathy, and obesity were considered severe
impairments at step two but were not found alone or in combination to meet or equal a listing at
step three.
The ALJ concluded that plaintiff had the RFC to perform a reduced range of
sedentary work but with lift and carry limitations of ten pounds frequently and twenty pounds
occasionally and, inter alia, the ability to periodically alternate between sitting and standing
every hour. The ALJ then found that plaintiff was unable to return to her past relevant work as a
licensed practical nurse, but that, considering plaintiffs age, education, work experience, and
RFC, there were jobs that existed in significant numbers in the national economy that plaintiff
could perform. Thus, the ALJ determined that plaintiff was not disabled as of the date of his
decision.
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Plaintiff contends that the ALJ erred in improperly weighing treating expert and othersource opinion, improperly assessing plaintiffs credibility, improperly assessing the severity of
plaintiffs impairments and their effects, and thus improperly assessing plaintiffs RFC.
A.
Treating and other-source opinions
The opinion of a treating physician must be given controlling weight if it is not
inconsistent with substantial evidence in the record and may be disregarded only if there is
persuasive contradictory evidence. Coffman v. Bowen, 829 F .2d 514, 517 (4th Cir. 1987);
Mitchell v. Schweiker, 699 F.2d 185 (4th Cir. 1983). An ALJ must provide specific reasons for
the weight given to a treating physician's opinion. SSR 96-2p.
Plaintiff contends that the ALJ erred by failing to assign a specific weight to the opinion
of her treating physician Dr. Kishbaugh. While the ALJ did not expressly state the specific
weight attributed to it, the ALJ specifically discussed Dr. Kishbaugh's opinion and noted that it
was "vague and not expressed in vocationally relevant terms." Tr. 34.
The ALJ further
incorporated some of the limitations expressed in Dr. Kishbaugh's opinion into plaintiffs RFC,
and thus it is clear from the decision that the ALJ gave the opinion some weight. Although
plaintiff contends that the ALJ erred by adopting some of Dr. Kishbaugh's limitations but not
others, an ALJ need not accept or reject a medical opinion in full. See Kozel v. Astrue, CIV.
JKS-10-2180, 2012 WL 2951554, at *5 (D. Md. July 18, 2012). Insomuch and the ALJ's failure
to state precisely the weight attributed to Dr. Kishbaugh's opinion was error, such error is
harmless in this instance because the ALJ expressly considered the opinion and thoroughly
discussed his treatment of it.
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Plaintiff next contends that the State agency physical medical opinions were
inconsistently addressed. The ALJ found that the State agency medical consultants did not
adequately consider all of plaintiffs physical impairments and thus the ALJ found plaintiff to be
more limited than the State agency consultants had expressed. Tr. 35. The ALJ further afforded
no weight to a third medical consultant because the opinion overstated plaintiffs abilities. !d.
The ALJ clearly explained his treatment of these opinions and his reasons for discounting them.
That some of the postural limitations adopted by the ALJ were also included in the opinions of
the State agency consultants does not reveal an inconsistency in the ALJ' s opinion.
Finally, plaintiff contends that the ALJ failed to properly weigh an opinion from
plaintiffs former employer. Opinions from "other sources" may provide insight into the severity
of a claimant's impairments and how the impairments affect the claimant's ability to function.
SSR 06-03p. The ALJ expressly considered the opinion of plaintiffs former employer, but
found it to be less probative as it included judgments about matters of which she had no firsthand knowledge. Tr. 35. The ALJ further noted that there would be no reason to doubt the
sincerity of the source's observations of plaintiffs behaviors and symptoms, but that the source's
observations are not consistent with the other evidence of record. !d.
Plaintiffhas failed to identify any error in the ALJ's treatment of the other source
opinion. For example, the other source opinion noted that she has helped plaintiffs daughter lift
plaintiff out of the bathtub. Tr. 248. The medical evidence, however, does not support such a
gross limitation on plaintiffs abilities. See e.g. Tr. 294, 359; 367-68 (mild tenderness in
paraspinal muscles, mild lumbar muscle spasm, negative straight leg raise tests, right shoulder
pain worse with overhead activities).
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B.
Plaintiffs credibility
Plaintiff next contends that the ALJ erred in assessing plaintiffs credibility. An ALJ
must consider all of the relevant evidence when assessing a claimant's RFC, SSR 96-8p, and an
ALJ' s credibility determination is to be given great weight. Shively v. Heckler, 739 F.2d 987,
989 (4th Cir. 1984). In assessing plaintiffs credibility, the ALJ found that plaintiffs allegations
as to the existence of her symptoms were only partially supported by the medical record, and that
while plaintiff does have severe impairments which could reasonably be expected to produce the
symptoms she alleged if she failed to follow her medical regimen or attempted to exceed her
RFC, her allegations as to the intensity and persistence of her limitations were disproportionate
to the evidence. Tr. 32.
The ALJ specifically considered plaintiffs testimony regarding her pain and the
limitations it imposed, largely accepting it and limiting plaintiff to a reduced range of sedentary
work. Tr. 34. That the ALJ noted inconsistencies in plaintiffs testimony regarding her activities
of daily living, compare Tr. 214 (plaintiff reports going outside every three to four days) with Tr.
66 (plaintiffs testimony that she drives Monday through Friday), in determining that plaintiff
may not be entirely reliable was not error. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990) (duty of ALJ not reviewing court to resolve conflicts in the evidence).
C.
Severity of plaintiffs impairments and assessment ofRFC
Plaintiff contends that the ALJ erred in finding plaintiffs urinary incontinence,
hypertension, asthma, and depression not to be severe impairments. A severe medically
determinable impairment is one which "significantly limits [a claimant's] physical or mental
ability to do basic work activities, .... " 20 C.F.R. § 404.1520(c). The ALJ noted that the record
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reflects that plaintiffs asthma and hypertension are controlled by medication and that there is no
evidence that these impairments cause any significant symptoms. Tr. 27. The ALJ fully
addressed plaintiffs allegation of urinary incontinence, noting that she had not allege such
condition on her application for benefits and that there is scant mention of it in the medical
record. ld The ALJ conducted a thorough analysis of plaintiffs depression, concluding that it
does not cause more than minimal limitation on plaintiffs abilities. Tr. 28.
The Court finds no error in the ALJ' s assessment of plaintiffs urinary incontinence,
hypertension, asthma, and depression. The ALJ relied on the record evidence, or lack thereof,
and plaintiffs own statements, or lack thereof, that these conditions were not severe. For
example, plaintiff stated that her mental concerns would not keep her from working, Tr. 400, but
now argues that contradictory opinions by physicians should be entitled to greater weight.
Review of the record does not reveal, however, a physician's opinion that plaintiffs depression
significantly limits plaintiffs ability to do basic work activities. Review of the record further
reveals only two instances where plaintiff complained of urinary problems to her treating
physicians. Tr. 282 (Urinary incontinence. No urgency, frequency, nocturia); Tr. 405-06
(complains of pressure in bladder area; no dysuria, fever, or chills). As noted above, plaintiffs
asthma and hypertension were controlled with medication. See Gross v. Heckler, 785 F.2d 1163,
1166 (4th Cir. 1986) ("If a symptom can be reasonably controlled by medication or treatment, it
is not disabling.").
Plaintiff further contends that the ALJ violated SSR 96-8p by failing to adequately
address the effects of plaintiffs non-severe impairments. 1 This argument is unavailing. The ALJ
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"While a 'not severe' impairment(s) standing alone may not significantly limit an individual's
ability to do basic work activities, it may--when considered with limitations or restrictions due to
other impairments--be critical to the outcome of a claim." SSR 96-8p.
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noted plaintiffs non-severe impairments when assessing her credibility, specifically referencing
his earlier discussion of such impairments and why they did not qualify as medically
determinable or severe. Tr. 32. Further, because the ALJ found some of plaintiffs non-severe
impairments, such as her asthma and hypertension, to have no significant symptoms, that the
ALJ did not expressly discuss how those impairments would in combination with other
impairments affect plaintiffs ability to perform work activities was not error.
The ALJ' s decision reflects a thorough consideration of the medical record and the
testimony in this case and is supported by substantial evidence. The decision of the
Commissioner is therefore affirmed.
CONCLUSION
For the foregoing reasons, plaintiffs motion for judgment on the pleadings [DE 20] is
DENIED and defendant's motion for judgment on the pleadings [DE 21] is GRANTED. The
decision of the ALJ is AFFIRMED.
SO ORDERED, this
f=~
day of April, 2016.
~,t;..u~&r&
; RRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE
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