Gower v. Berryhill

Filing 23

ORDER denying 17 Motion for Judgment on the Pleadings and granting 19 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 3/6/2018. (Stouch, L.)

IN THE UNI'FED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SQUTHERN DIVISION
No. 7:17-CV-13-BO
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KERRY A. GOWER,

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Plaintiff,

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ORDER

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NANCY A. BERRYHILL,
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Acting Commissioner of Social Securi~,

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Defendant.

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This matter is before the Co:rnt on the parties' cross-motions for judgment on the
pleadings. [D.E. 17, 19]. A hearing: on this matter was held in Raleigh, North Carolina on
February 21, 2018. [D.E. 22]. For th~ reasons discussed below, plaintiffs motion [D.E. 17] is
DENIED, defendant's motion [D.E.

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is GRANTED, and the decision of the Commissioner is

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AFFIRMED.
:BACKGROUND

Plaintiff previously applied foridisability insurance benefits ("DIB") under Title II of the
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Social Security Act ("Act") and received an unfavorable decision from an Administrative Law
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Judge ("ALJ'') on March 12, 2014. [Tr. 58-79]. Plaintiff did not appeal. On August 6, 2015,
plaintiff again.applied for DIB, allegi~g a disability onset of October 13, 2011. [Tr. 180-81].
This claim was denied initially and updn reconsideration. [Tr. 80-95, 96-114, 117-20, 122-27].
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On June 28, 2016, an ALJ conducted a hearing to consider plaintiffs claims de nova.
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[Tr. 33-57]. On August 29, 2016, the ALJ issued a decision finding that plaintiff was not
disabled within the meaning of the Act. [Tr. 10-32]. The Appeals Council denied plaintiffs
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review request on January 13, 2017, rendering the ALJ's decision the Commissioner's final
decision. [Tr. 1-3].
On January 25, 2017, plaintiff filed a complaint in this court seeking review of the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g). [D.E. 1].

LEGAL STANDARD
A district court's review of the Commissioner's final decision is limited to determining
whether the correct legal standard was applied and whether, based on the entire administrative
record, there is substantial evidence to support the Commissioner's findings.

42 U.S.C. §

405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as
"such relevant evidence as a reasonable mind might accept as adequate to 'support a conclusion."

Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and
citation omitted). Substantial evidence '"consists of more than a mere scintilla of evidence but
may be somewhat less than a preponderance."' Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). When determining
whether substantial evidence supports the Commissioner's final decision, courts should not
"undertake to re-weigh conflicting evidence, make credibility determinations, or substitute our
judgment for that of the [Commissioner]." Id. (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990)).
Under the Act, an individual is disabled if he is unable "to engage in any substantial
gainful activity by reason of any medically deterniinable physical or mental impairment which
can be expected to result in defith 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). Further:
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

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to do his previous work but cannot, considering his age, education, and work
experience, engage in any other line of substantial gainful work ....
42 U.S.C. § 1382c(a)(3)(B).
The ALJ engages in a sequential five-step evaluation process to make an initial disability
determination. 20 C.F.R. § 404.1520(a); see Johnson, 434 F.3d at 653. The burden of proof is
on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth
step. Pass v. Chafer, 65 F.3d 1200, 1203 (4th Cir. 1995). If a decision regarding the claimant's
disability can be made at any step of the process, the ALJ's inquiry ceases.

20 C.F.R.

§ 404.1520(a)(4).
When evaluating adults, the ALJ denies the claim at step one if the claimant is currently
engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4). At step two, the ALJ denies
the claim if the claimant does not have a severe impairment or combination of impairments
significantly limiting him from performing basic work activities. Id. At step three, the ALJ
compares the claimant's impairment to those in the Listing of Impairments. See 20 C.F.R. Part
404, Subpart P, App. 1.

If the impairment is listed, or equivalent to a listed impairment,

disability is conclusively presumed without considering the claimant's age, education, and work
experience. 20 C.F.R. § 416.920(d). However, if the impairment does not meet or equal a listed
impairment, the ALJ then makes a residual functional capacity ("RFC") finding. 20 C.F.R. §
404.1545(e).
An RFC finding considers both severe and non-severe impairments, and any combination
thereof, and takes into account both objective medical evidence as well as subjective complaints
of pain and limitations. Id. The ALJ considers the claimant's ability to meet the physical,
mental, sensory, and other requirements of accomplishing work. 20 C.F.R. § 404.1545(a)(4).
An RFC finding is meant to reflect the most that a claimant can do, despite his limitations. 20

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C.F.R. § 404.1545(a)(l). An RFC finding should also reflect the claimant's ability to perform
sustained work-related activities in a work setting on regular and continuing basis, meaning
eight-hours per day, and five days per week. See SSR 96-8p; Hines v. Barnhart, 453 F.3d 559,
562 (4th Cir. 2006).
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At step four, the ALJ considers a claimant's RFC to determine whether he can perform
past relevant work ("PRW") despite his impairments. 20 C.F.R. § 416.920(a)(4). If not, the ALJ
proceeds to step five of the analysis: establishing whether the claimant-based on his RFC, age,
education, and work experience-can make an adjustment to· perform other work. Id. If the
claimant cannot perform other work, the ALJ finds him disabled. Id.
THE ALJ'S DECISION

At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
during the period from his alleged onset date of October 13, 2011, through his date last insured
/' of December 31, 2015, the date he last met the insured status requirement of the Act. 1 [Tr. 14,
16]. At step two, the ALJ enumerated plaintiffs severe impairments through the date last
insured, including: lumbar degenerative disc disease ("DDD"), status-post lumbar fusion; seizure
disorder; and bipolar disorder. [Tr. 16]. At step three, the ALJ found that none of plaintiffs
impairments, nor any combination thereof, met or equaled one of the conditions in the Listing of
Impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Tr. 17-18].
The ALJ found that, through the date last insured, plaintiff had the RFC to perform less
than the full range of light work with the following restrictions:
The claimant can never climb ladders, ropes or scaffolds. He can occasionally
stoop and crouch, and he can frequently sit, stand, [and] walk. He can
occasionally climb ramps and stairs, balance, kneel, and crawl. The claimant
must have no exposure to workplace hazards. He is capable of performing and
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Plaintiff admits that the effective onset date of his claim is March 13, 2014, the day after his prior DIB decision
was rendered. See [D.E. 18] at 6; see also [Tr. 14] (declining to reopen the earlier administrative decision).
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sustaining simple, routine, repetitive tasks in a work environment that does not
require a production-rate pace. He is capable of occasional superficial contact
with the general public.
[Tr. 19]
At the hearing on June 28, 2016, the vocational expert ("VE") testified that plaintiff could
not perform his PRW as a carpenter, drywall installer, and construction contractor. [Tr. 55].
However, the VE found that plaintiff could still perform the following representative jobs:
Returned Goods Sorter (DOT #922.687-086) with 472,000 positions available nationally; (2)
Paper Products Hand Bander (DOT #930.687-026) with 250,000 positions available nationally;
and (3) Stock Checker (DOT #299.667-014) with 198,000 positions available nationally. Id.
At step four, the ALJ determined that the VE's testimony was consistent with the DOT
and adopted the VE's finding that plaintiff was unable to resume his PRW. [Tr. 26]. At step
five-in reliance upon the VE's testimony regarding alternative jobs that plaintiff could perform,
and after considering plaintiffs age, education, work experience, and RFC-the ALJ determined
that plaintiff was not disabled within the meaning of the Act. [Tr. 27-28].
DISCUSSION

Plaintiff first argues that the ALJ erred in finding that he maintained the RFC for light
work. See [D.E. 18] at 20. Specifically, plaintiff contends that the record reflects he is capable
of, at most, sedentary work, and that the ALJ should have found him disabled pursuant to the
grid (a.k.a. the Medical Vocational Guidelines) regulation 201.14. See id. at 22-26 (citing,
among other things, 20 C.F.R. Pt. 404, Subpt. P., App. 2, § 201.14).
Contrary to plaintiffs first argument, the ALJ carefully considered the entire record and
discussed the existence and consequences of plaintiffs disabilities, to include DDD, status-post
lumbar fusion, seizure disorder, and bipolar disorder. See [Tr. 16]. As discussed above, the ALJ

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found that the cumulative effects of plaintiffs document impairments would preclude him from
everything but light work but were not totally disabling. [Tr. 27-28]. There is no apparent
discrepancy between the limitations discussed in the ALJ' s RFC finding and the requirements of
the jobs that the ALJ found-based on the VE's testimony-that plaintiff coulo perform.
Succinctly stated, although plaintiff disagrees with the ALJ's RFC finding, this finding is
supported by substantial evidence in the record, and the court declines to reweigh the evidence or
substitute its judgment for that of the Commissioner. See 42 U.S.C. § 405(g); Perales, 402 U.S.
at 401; Johnson, 434 F.3d at 653; Craig, 76 F.3d at 589; see also Radford v. Colvin, 734 F.3d
288, 295 (4th Cir. 2013) (requiring, for a finding of substantial evidence, that the record "include
a discussion of which evidence the ALJ found credible and why, and specific application of the
pertinent legal requirements to the record evidence." (citing Hines v. Bowen, 872 F.2d 56, 59
(4th Cir. 1989))).
Second, plaintiff argues that the ALJ erred in failing to give significant weight to the
opinions of Jonathan Staub, M.D. ("Dr. Staub"). See [D.E. 18] at 24-25. Plaintiff specifically
contends that, because Dr. Staub was his long-time primary care physician, and because none of
the factors for finding that the opinion of a treating physician merited less weight apply here, the
ALJ was required to assigning controlling weight to Dr. Staub's opinions. See [D.E. 18] at 24
(citing 20 C.F.R. § 404.1527; Johnson, 434 F.3d at 654).
Contrary to plaintiffs second argument, an ALJ is entitled to give little weight to a
medical opinion, including that of a treating physician.

See, e.g., 20 C.F.R. § 404.1527(c)

(noting that an ALJ must apply various factors and give "good reasons" for not assigning
controlling weight to a treating physician's opinion); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir.
2001) (noting that "the ALJ holds the discretion to give less weight to the testimony of a treating

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physician in the face of persuasive contrary evidence."); Craig, 76 F.3d at 590 ("By negative
implication, 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.").
Here, the ALJ both acknowledged that Dr. Staub was plaintiff's treating physician [Tr.
21] and articulated clear reasons for assigning little weight to his medical opinions. The ALJ
first noted that the prior administrative decision denying DIB also considered the earlier opinions
of Dr. Staub. [Tr. 21] (referencing [Tr. 67, 71-72]). This prior administrative decision found
that, contrary to Dr. Staub's opinions, the record reflects that plaintiff's back condition was not
significantly disabling because: plaintiff had not sought emergency treatment for his back pain
after May 2012; plaintiff's back pain is managed with over-the-counter medication; plaintiff only
sees Dr. Staub for back-pain treatment once every six months; physical examinations do not
show that plaintiff has strength deficits or gait abnormalities that would support Dr. Straub's
opinions; plaintiff himself testified that he could lift 20 pounds (more than what Dr. Staub
opined); and that, in spite of Dr. Staub's opinion that plaintiff's back pain was caused by scar
tissue, a lumbar CT scan shows no evidence that plaintiff has scar tissue causing spinal cord
compression. See [Tr. 67, 71-72]. The prior administrative decision also found that psychiatric
specialists' evaluations conflicted with Dr. Staub's diagnosis of depression with paranoid
features, and that Dr. Staub's opinion that plaintiff had difficult concentering and sustaining
attention was not supported by other mental status examinations. See [Tr. 72].
Contrary to plaintiff's contention that the ALJ mischaracterized the record regarding
plaintiff's continued back treatments, see [D.E. 18] at 24, the ALJ actually conceded that
plaintiff subsequently sought emergency department treatment for chronic low-back pain in
April and May of 2014, but nevertheless noted that, upon examination, plaintiff had no motor or

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neurological deficits, see [Tr. 21]. The ALJ further noted a conflict between Dr. Staub's April
2015 assessment of chronic, recurrent lumbago and Dr. Staub's July 2015 physical examination
listing low-back pain as a problem, but not a chronic condition. See id (referencing Tr. 412416). Nevertheless, the ALJ concluded that, in spite of these conflicts, plaintiffs back disorder
was fully account for in the RFC. See id
diagnosis of stable, unspecified epilepsy

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The ALJ also discussed Dr. Staub's July 2015
Dr. Staub's· June 2016 opinion asserting that his

earlier December 2012 opinion "continued to reflect, to a reasonable degree of certainty, the
claimant's [RFC], through December 31, 2015." [Tr. 22]. The ALJ concluded that Dr. Staub's
June 2016 medical opinion was due little weight because it was internally inconsistent and not
consistent with the record as a whole, to include Dr. Staub's own treatment notes. See [Tr. 26].
Consistency and supportability are two of the factors used to determine the weight that is
due to a treating physician's medical opinion. See Johnson, 434 F.3d at 654 ("Courts evaluate
and weigh medical opinions pursuant 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." (citing 20 C.F.R. § 404.1527)).
Here, as noted above, the ALJ discussed both the various inconsistencies found in Dr. Staub's
opinions themselves and between other record evidence, and the -fact that Dr. Staub's
conclusions as to plaintiff's degree of disability were not supported. See [Tr. 21-26]. Thus, in
spite of plaintiffs lengthy treatment relationship with Dr. Staub, the court finds that the ALJ's
determination-finding that little weight is due to Dr. Staub's opinions-is supported by
substantial evidence. See 42 U.S.C. § 405(g); Perales, 402 U.S. at 401; Radford, 734 F.3d at
295; Johnson, 434 F.3d at 653.

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The court concludes that the Commissioner's final decision-including the ALJ's RFC
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finding and the ALJ's determination that little weight was due to Dr. Staub's opinions-applied
the correct legal standard and is supported by "more than a mere scintilla" of evidence. See

Johnson, 434 ·F.3d at 653; Craig, 76 F.3d at 589. Accordingly, because there is substantial
evidence to support the Commissioner's. final decision, affirmance is appropriate here. See 42
U.S.C. § 405(g); Perales, 402 U.S. at 401.

Therefore, plaintiff's third argument-generally

advocating for reversal, not remand, see [D.E. 18] at 26-is rendered moot.
CONCLUSION

For the foregoing reasons, the plaintiffs motion for judgment on the pleadings [D.E. 17]
is DENIED, the Commissioner's motion on the pleadings [D.E. 19] is GRANTED, and the
decision of the Commissioner is AFFIRMED.
SO ORDERED.
This

_1_ day of March, 2018.

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