HUTCHINSON v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/16/2012. IT IS THEREFORE RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff' ;s motion to reverse the decision of the Commissioner (Docket Entry 8 ) be DENIED, that Defendant's motion for judgment on the pleadings (Docket Entry 10 ) be GRANTED, and that this action be dismissed with prejudice. IT IS ORDERED that Plaintiff's Motion for Prompt Decision(Docket Entry 14 ) is DENIED AS MOOT.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL HUTCHINSON,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
1:09CV57
MEMORANDUM OPINION, ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Michael Hutchinson, brought this action pursuant to
Section 205(g) of the Social Security Act (the “Act”), as amended
(42 U.S.C. §§ 405(g)), to obtain judicial review of a final
decision of the Commissioner of Social Security denying his claim
for Disability Insurance Benefits under Title II of the Act.
The
Court has before it the certified administrative record and the
parties have made cross-motions for judgment (Docket Entries 7,
10).
In addition, Plaintiff recently filed a Motion for Prompt
Decision (Docket Entry 14).
PROCEDURAL HISTORY
Plaintiff
applied
for
Disability
Insurance
Benefits
on
November 17, 2004, alleging a disability onset date of June 15,
2002.
(Tr. 56-58.)1
reconsideration.
His application was denied initially and upon
(Tr. 47-49, 51-54.)
Plaintiff then requested a
hearing de novo before an Administrative Law Judge (“ALJ”) (Tr.
43), which he attended on November 27, 2007, with his attorney and
1
Transcript citations refer to the administrative record.
a
vocational
expert
(Tr.
15,
327-71).
The
ALJ
ultimately
determined that Plaintiff was not disabled within the meaning of
the Act (Tr. 26) and, on November 26, 2008, the Appeals Council
denied Plaintiff’s request for review, thereby making the ALJ’s
conclusion
the
Commissioner’s
final
decision
for
purposes
of
judicial review (Tr. 5-7).
In rendering his disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1. The claimant meets the insured status requirements of
the Social Security Act through December 31, 2007.
2. The claimant has not engaged in substantial gainful
activity since June 15, 2002, the alleged onset date (20
CFR 404.1520(b) and 404.1571 et seq.).
3. The claimant has the following severe impairments:
work-related back injury due to injuries sustained in a
motor vehicle accident and adjustment disorder with
anxiety and a depressed mood (20 CFR 404.1520(c)).
4.
The claimant does not have an impairment or
combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526).
. . . .
5. After careful evaluation of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform the limited range of
medium work involving simple, unskilled work activity
which only requires one, two or three step instructions;
lifting or carrying 25 pounds frequently and 50 pounds
occasionally; standing or walking with normal breaks for
a total of 6 hours of an 8-hour workday; pushing and
pulling within the aforementioned weight restrictions
with his upper and lower extremities; bilateral manual
dexterity for both gross and fine manipulation with
handling and reaching; and stooping occasionally with no
additional postural limitations noted.
(Tr. 17, 19.)
-2-
In light of the above findings regarding residual functional
capacity (“RFC”), the ALJ determined that Plaintiff was able to
perform his past relevant work as a delivery driver.
Accordingly,
he
determined
that
Plaintiff
was
not
(Tr. 25.)
under
a
“disability,” as defined in the Act, from his alleged onset date of
June 15, 2002, through the date of the decision.
(Tr. 26.)
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of review of [such an administrative] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
“The courts are not to try the case de novo.”
495 F.2d 396, 397 (4th Cir. 1974).
Oppenheim v. Finch,
Instead, “a reviewing court
must uphold the factual findings of the ALJ [underlying the denial
of benefits] if they are supported by substantial evidence and were
reached through application of the correct legal standard.” Hines,
453 F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal citations and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
-3-
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
In confronting the issue so framed, the Court must note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability 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 12 months,’” id.
-4-
(quoting
42
U.S.C.
§
423(d)(1)(A)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
promulgated . . . detailed regulations incorporating long-standing
medical-vocational evaluation policies that take into account a
claimant’s age, education, and work experience in addition to [the
claimant’s] medical condition.”
Id.
“These regulations establish
a ‘sequential evaluation process’ to determine whether a claimant
is disabled.”
Id. (internal citations omitted).
This process has up to five steps: “The claimant (1) must not
be engaged in ‘substantial gainful activity,’ i.e., currently
working; and (2) must have a ‘severe’ impairment that (3) meets or
exceeds the ‘listings’ of specified impairments, or is otherwise
incapacitating to the extent that the claimant does not possess the
residual functional capacity to (4) perform [the claimant’s] past
work or (5) any other work.”
Albright v. Commissioner of Soc. Sec.
Admin., 174 F.3d 473, 475 n.2 (1999).3
A finding adverse to the
claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry.
For
2
“The Social Security Act comprises two disability benefits
programs. The Social Security Disability Insurance Program . . .
provides benefits to disabled persons who have contributed to the
program while employed. The Supplemental Security Income Program
. . . provides benefits to indigent disabled persons.
The
statutory definitions and the regulations . . . for determining
disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1
(internal citations omitted).
3
“Through the fourth step, the burden of production and proof
is on the claimant. If the claimant reaches step five, the burden
shifts to the [government] . . . .”
Hunter, 993 F.2d at 35
(internal citations omitted).
-5-
example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
4
“RFC is a measurement of the most a claimant can do despite
[the claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that
administrative regulations require RFC to reflect claimant’s
“ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis . .
. [which] means 8 hours a day, for 5 days a week, or an equivalent
work schedule” (internal emphasis and quotation marks omitted)).
The RFC includes both a “physical exertional or strength
limitation” that assesses the claimant’s “ability to do sedentary,
light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).”
Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s
impairments and any related symptoms (e.g., pain).” Hines, 453
F.3d at 562-63.
-6-
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
Assignments of Error
In the present case, the ALJ found that Plaintiff, who was not
working, met his burden at step one of the sequential evaluation
process (“SEP”).
(Tr. 17.)
At step two, he further determined
that Plaintiff suffered from the following severe impairments:
work-related back injury due to injuries sustained in a motor
vehicle
accident
and
adjustment
disorder
with
anxiety
and
a
depressed mood. (Id.) However, the ALJ found at step four that,
although
these
impairments
created
both
exertional
and
non-
exertional step three limitations, Plaintiff could nonetheless
perform his past relevant work as a delivery driver.
(Tr. 19, 25.)
Plaintiff argues that substantial evidence fails to support
5
A claimant thus can qualify as disabled via two paths through
the five-step sequential evaluation process.
The first path
requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant
must prevail at steps one, two, four, and five. Some short-hand
judicial characterizations of the sequential nature of the fivestep disability evaluation appear to gloss over the fact that an
adverse finding against a claimant on step three does not terminate
the analysis. See, e.g., Hunter, 993 F.2d at 35 (“If the ALJ finds
that a claimant has not satisfied any step of the process, review
does not proceed to the next step.”).
-7-
the Commissioner’s findings at steps three and four. (Docket Entry
9 at 2-12.)
In particular, he contends that, at step three, the
ALJ failed to properly weigh the medical source opinions, including
the opinion of Plaintiff’s treating physician.
(Id. at 2-9.) In
making this argument, Plaintiff also questions the ALJ’s assessment
of Plaintiff’s credibility.
(Id. at 11-12.)
At step four,
Plaintiff challenges the ALJ’s finding that he can safely perform
his past relevant work.
(Id. at 9-10.) Finally, Plaintiff argues
that “the Appeals Council erred in failing to follow 4th Circuit
law requiring specific consideration of additional evidence.” (Id.
at 2.)
Defendant contends otherwise and urges that substantial
evidence
disabled.
1.
supports
the
determination
that
Plaintiff
was
not
(See, e.g., Docket Entry 11 at 20.)
Treating Physician Opinion
Plaintiff first argues that
the ALJ erred in his evaluation of medical opinion
evidence in failing to adequately evaluate the medical
opinion evidence, in failing to state what weight was
given to a treating physician opinion, and in failing to
recontact the claimant’s treating pain physician when he
felt the treating physician’s opinion was unsatisfactory,
and in substituting his own opinion for that of
physicians.
(Docket Entry 9 at 2.)
These contentions primarily dispute the
ALJ’s application of 20 C.F.R. §§ 404.1527(d) and 416.927(d),
better known as the “treating physician rule.”
In particular,
Plaintiff contends that the ALJ gave inadequate weight to the
opinion of Dr. Mark Phillips, a specialist in pain management who
treated Plaintiff for more than four years, and instead based his
-8-
decision chiefly on the opinions of the non-examining state agency
physician and Plaintiff’s surgeon, Dr. Jeffery Jenkins.
(Docket
Entry 9 at 4-6.)
The treating physician rule generally requires an ALJ to give
controlling weight to the opinion of a treating source as to the
nature and severity of a claimant’s impairment, based on the
ability of treating sources to
provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) [which] may bring a
unique perspecitve to the medical evidence that cannot be
obtained from the objective medical findings alone or
from reports of individual examinations, such as
consultative examinations or brief hospitalizations.
20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2).
The rule also
recognizes, however, that not all treating sources are created
equal.
Rather,
the
nature
and
extent
of
each
treatment
relationship appreciably tempers the weight an ALJ affords it. See
20 C.F.R. §§ 404.1527(d)(2)(ii) and 416.927(d)(2)(ii).
Significantly, as subsections (2) through (4) of the rule
describe in great detail, a treating source’s opinion, like all
medical opinions, must be both well-supported by medical signs and
laboratory findings and consistent with the other substantial
evidence in the case record.
20 C.F.R. §§ 404.1527(d)(2)-(4) and
416.927(d)(2)-(4). “[I]f 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; accord Mastro, 270 F.3d at 178. Moreover, opinions
by physicians regarding the ultimate issue of whether a plaintiff
-9-
is disabled within the meaning of the Act never receive controlling
weight
because
the
Commissioner alone.
decision
on
that
issue
remains
for
the
20 C.F.R. § 404.1527(e).
In the present case, the ALJ declined to give Dr. Phillips’
opinion controlling weight because it lacked adequate support from
objective medical evidence.
(Tr. 24.)
An ALJ must give “good
reasons” for discounting a treating physician’s opinion by applying
the factors set out above, see 20 C.F.R. § 404.1526(d)(2); however,
a careful reading of the ALJ’s decision reveals that he did, in
fact,
apply
the
substance
of
the
relevant
considerations
in
discounting Dr. Phillips’ opinion and thus no error occurred, see
Botta v. Barnhart, 475 F. Supp. 2d 174, 188 (E.D.N.Y. 2007)
(observing that
ALJ’s failure to explicitly discuss certain
matters “does not require remand if it can be ascertained from the
entire record and the ALJ’s opinion that the ALJ ‘applied the
substance’ of the treating physician rule”). First, a full page in
the decision recounts Dr. Phillips’ treatment notes from 2003
through 2007, showing a long relationship and a relatively high
frequency of examination.
(Tr. 22-23.)
This discussion reveals
that, although Dr. Phillips performed some objective testing (i.e.,
straight leg raises, pinpricks, and strength assessments), the
treating
relationship
largely
revolved
around
Plaintiff’s
subjective reports of pain and numbness, for which Dr. Phillips
prescribed various medications.
not expressly
identify
Dr.
(Id.)
Phillips
-10-
Further, the decision does
as
a specialist
in
pain
management, but does note that he worked as a physician at Guilford
Pain Management, P.A., a specialist practice.
(Tr. 22.)
Taken in isolation, some of the foregoing factors would have
entitled Dr. Phillips’ opinion to a high degree of deference.
However, the ALJ did not have to consider only those matters, but
rather also properly examined whether objective medical evidence
and the record as a whole supported Dr. Phillips’ opinion.
In this
regard, nearly all of Dr. Phillips’ objective neurologic findings
fell
within
normal
limits
(even
when
taking
Plaintiff’s
4/5
quadriceps strength and attenuated perception into account) and the
straight leg raise tests also produced typically normal results.
(Tr. 22-23.)
Moreover, the only mention of Plaintiff’s functional
abilities in Dr. Phillips’ treatment notes reflect Plaintiff’s own
opinions, not those of his physician:
The patient notes that his limitations seem to have
worsened since his last functional capacity evaluation.
He’s able to lift about 15 pounds, he can stand for about
an hour and sit for about an hour and is limited to
minimal if any bending or squatting.
(Tr. 304.)
is
Thus, Dr. Phillips supports his opinion that Plaintiff
“totally
and
permanently
disabled”
with
little
more
than
Plaintiff’s subjective complaints of pain and reports of functional
abilities, not objective clinical evidence.
Dr. Phillips’ opinion also conflicts with the medical evidence
provided by Plaintiff’s surgeon, Dr. Jenkins, and the state agency
physician, Dr. Dascal.
“does not
provide
a
Plaintiff argues that Dr. Jenkins’ opinion
good
picture
of
[Plaintiff’s]
long
term
functional status” because he “saw the claimant when his condition
-11-
was not stable.”
(Docket Entry 9 at 5.)
However, both the record
and Plaintiff’s own brief belie this assertion. Plaintiff remained
in Dr. Jenkins’ care until Plaintiff reached maximum medical
improvement,
at
which
point
he
received
impairment rating of 15% to his back.
a
(Id.)
permanent
partial
Only upon assigning
this rating and referring Plaintiff to Dr. Phillips for pain
management did Dr. Jenkins opine that Plaintiff could perform “a
light duty physical demand job with leg lift capability of 20
pounds and torso lifts of 20 pounds.”
(Tr. 152.)
Moreover, Plaintiff’s acknowledgment that Dr. Phillips’ care
did
not
commence
until
“after
[Plaintiff]
was
felt
to
have
recovered more or less maximally” (Docket Entry 9 at 5) limits the
value of Dr. Phillips’ opinion. Specifically, Dr. Phillips did not
engage with Plaintiff for the purpose of gathering objective
medical evidence to assist in his recovery, but instead with the
goal of managing the subjective pain symptoms associated with
Plaintiff’s impairment; as a result, Dr. Phillips largely relied on
the earlier objective findings of Dr. Jenkins, which included two
MRIs and surgical findings. (See Tr. 152-164.)
of
these
functional
two
treating
abilities,
physicians
the
ALJ
was
diverged
entitled
Where the opinions
as
to
to
Plaintiff’s
place
greater
credence in the treating opinion more closely grounded in clinical
evidence.
Under these circumstances, the ALJ’s decision to only
give “some weight,” rather than controlling weight, to Dr. Jenkins’
opinion properly reflects a proper exercise of the ALJ’s authority
to resolve inconsistencies in the medical evidence.
-12-
The ALJ also properly relied on the RFC assessment by Dr.
Dascal, which recounted Plaintiff’s objective physical limitations,
chiefly his 4/5 left quadriceps strength and 15% permanent back
impairment, as well as the underlying MRI findings and surgical
notes.
(Tr. 270.)
Dr. Dascal detailed Plaintiff’s subjective
complaints of radiculopathy, as assessed by Dr. Phillips, and
Plaintiff’s daily activities, which included walking 30-45 minutes
per day, helping care for his children, driving, and performing
some household chores.
(Id.)
In other words, Dr. Dascal reviewed
the record, particularly the medical evidence, as a whole and
determined that Plaintiff could perform medium work with occasional
stooping and further exertional limitations, all of which the ALJ
adopted.
(Tr. 19, 264-70.)
Notably, nothing supports Plaintiff’s
assertion that, by making this adoption, the ALJ substituted his
own opinion for that of Plaintiff’s physicians.
The ALJ clearly
based his assessment of Plaintiff’s abilities on the RFC determined
by Dr. Dascal, which was supported by substantial evidence.
Plaintiff’s contention that the ALJ had a duty to recontact
Dr. Phillips similarly lacks merit.
“[T]he ALJ has a duty to
explore all relevant facts and inquire into the issues necessary
for adequate development of the record, and cannot rely only on the
evidence
submitted
inadequate.”
by
the
claimant
when
that
evidence
is
Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)
(emphasis added); see also Kersey v. Astrue, 614 F. Supp. 2d 679,
693-94 (W.D. Va. 2009) (“The regulations require only that the
medical evidence be ‘complete’ enough to make a determination
-13-
regarding the nature and severity of the claimed disability, the
duration of the disability and the claimant’s residual functional
capacity.” (citing 20 C.F.R. §§ 404.1513(e), 416.913(e)) (emphasis
added); France v. Apfel, 87 F. Supp. 2d 484, 490 (D. Md. 2000)
(“[T]he ALJ
additional
does
not otherwise
information
if
the
have
record
an
is
obligation
adequate
to
to
obtain
make
a
determination regarding a disability claim.” (emphasis added)).
“[T]hat does not mean that ‘a remand is warranted any time the
claimant alleges
record.’”
that
the ALJ
has
neglected to
complete
the
Hood v. Astrue, No. SKG-08-2240, 2009 WL 4944838, at *8
(D. Md. Dec. 14, 2009) (unpublished) (quoting Brown v. Shalala, 44
F.3d 931, 935 n.9 (11th Cir. 1995)).
Instead,
[t]he Fourth Circuit has held that a case should be
remanded for failure to develop the administrative record
“[w]here the ALJ fails in his duty to fully inquire into
the issues necessary for adequate development of the
record, and such failure is prejudicial to the claimant
. . .” Marsh v. Harris, 632 F.2d 296, 300 (4th Cir.
1980)(emphasis added). “Prejudice can be established by
showing that additional evidence would have been produced
. . . and that the additional evidence might have led to
a different decision.”
Ripely v. Chater, 67 F.3d 552,
557 n. 22 (5th Cir. 1995). If a plaintiff fails to show
that he/she was prejudiced by the ALJ’s failure to
develop the record, remand is not warranted.
Zook v. Commissioner of Soc. Sec., No. 2:09cv109, 2010 WL 1039456,
at *4 (E.D. Va. Feb. 25, 2010) (unpublished) (brackets and ellipses
in original); see also Bell v. Chater, 57 F.3d 1065, 1995 WL
347142, at *5 (4th Cir. 1995) (unpublished) (finding no reversible
error where Plaintiff “failed to indicate how . . . unidentified
[medical] reports would have impacted the ALJ’s assessment”);
-14-
Scarberry v. Chater, 52 F.3d 322, 1995 WL 238558, at *4 n.13 (4th
Cir.
1995)
(unpublished)
(ruling
that
“ALJ
had
before
him
sufficient facts to determine the central issue of disability”
where the plaintiff’s attorney failed to “identify what the missing
evidence would have shown”).
In the case of medical evidence, the hearing officer must
develop a plaintiff’s complete medical history for at least the
twelve months preceding the month of that plaintiff’s application
and must assist the plaintiff in obtaining medical reports from his
doctors.
20 C.F.R. § 404.1512(d).
Development of the record may
include ordering consultative examinations “when evidence as a
whole, both medical and nonmedical, is not sufficient to support a
decision,” 20 C.F.R. § 404.1519a(b). When assessing a plaintiff’s
RFC, such evidence includes “descriptions and observations of [the
plaintiff’s]
limitations
from
[his]
impairment(s),
including
limitations that result from [his] symptoms such as pain, provided
by [the plaintiff], [his] family, neighbors, friends, or other
persons,” 20 C.F.R. § 404.1545(a)(3).
Here, the ALJ never determined that the existing medical
evidence was inadequate.
Rather, he found that Dr. Phillips’
statement as to the ultimate issue was “not supported by the
objective evidence,” such that it was “not given controlling
weight.”
(Tr. 24.)
Plaintiff devotes nearly a full page of his
brief to a list of Dr. Phillips’ objective findings from the
existing
record
and
he
provides
no
explanation
as
to
how
“additional information and clarification of Phillips’ treatment
-15-
records
and
medical
assessment”
disability determination.
would
mandate
(Docket Entry 9 at 6.)
a
different
In fact, the
very wording of Plaintiff’s request demonstrates a desire, not for
additional objective evidence, but merely for Dr. Phillips’ to
expound upon how the existing evidence supports his opinion as to
the ultimate issue.
Because the ALJ found sufficient evidence to
support his determination absent this explanation, “any failure on
the part of the ALJ to ferret out additional information did not
constitute reversible error.”
Bell, 1995 WL 347142, at *5.
2. Credibility
In a related argument, Plaintiff challenges the ALJ’s finding
at step three of the SEP that Plaintiff’s statements regarding the
intensity, persistence, and limiting effects of his symptoms were
not entirely credible.
(Docket Entry 9 at 11-12.)
SSR 96-7p, as
applied by the Fourth Circuit in Craig, 76 F.3d at 594-95, provides
a
two-part
symptoms.6
test
for
“First,
evaluating
there
must
a
claimant’s
be
objective
statement
medical
about
evidence
showing ‘the existence of a medical impairment(s) which results
from anatomical, physiological, or psychological abnormalities and
which could reasonably be expected to produce the pain or other
symptoms alleged.’” Id. at 594 (citing 20 C.F.R. §§ 416.929(b) and
404.1529(b)).
In the present case, Plaintiff specifically alleged
pain and weakness in his back and left leg as a result of his
documented back injury.
(Tr. 20.)
6
SSR 96-7p, in turn, clarifies credibility assessment considerations as
provided for under 20 C.F.R. §§ 404.1529 and 416.929.
-16-
Plaintiff’s case thus hinges on the second part of the test,
which requires that,
after a claimant has met her threshold obligation of
showing by objective medical evidence a medical
impairment reasonably likely to cause the pain claimed,
. . . the intensity and persistence of the claimant's
pain, and the extent to which it affects her ability to
work, must be evaluated. See 20 C.F.R. §§ 416.929(c)(1)
& 404.1529(c)(1). Under the regulations, this evaluation
must take into account not only the claimant’s statements
about her pain, but also “all the available evidence,”
including the claimant’s medical history, medical signs,
and laboratory findings, see id.; any objective medical
evidence of pain (such as evidence of reduced joint
motion, muscle spasms, deteriorating tissues, redness,
etc.), see 20 C.F.R. §§ 416.929(c)(2) & 404.1529(c)(2);
and any other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it, see 20 C.F.R. §§
416.929(c)(3) & 404.1529(c)(3).
Id. at 595.
Here, Plaintiff contends that the ALJ failed to adequately
consider all of the evidence in the record before concluding that
Plaintiff’s statements regarding pain were not entirely credible.
(Docket Entry 9 at 11-12.)
Plaintiff particularly challenges the
ALJ’s conclusion in light of Plaintiff’s restricted activities of
daily living, as reflected in testimony and medical records, his
ongoing use of prescription pain medications, and his behavior
during his disability hearing.
(Id.)
Plaintiff correctly notes
that his medical records reveal left leg weakness and numbness, as
well as consistent complaints of significant pain in his leg and
back.
(Id. at 11.)
Evidence also well documents Plaintiff’s
continued reliance on pain medications.
-17-
(Id.)
The issue, however, is not whether Plaintiff’s pain exists; it
undoubtedly does and the ALJ so acknowledged.
(See Tr. 24.)
Rather, the Court must determine whether the ALJ failed to consider
all of the evidence in the record before determining that the
extent and limiting effects of that pain were not as great as
Plaintiff claimed.
Significantly, in evaluating a plaintiff’s
credibility, the ALJ has the responsibility to draw inferences
from, and resolve conflicts in, the record.
Hammond v. Heckler,
765 F.2d 424, 426 (4th Cir. 1985) (citing Smith v. Schweiker, 719
F.2d 723, 725 n.2 (4th Cir. 1984)).
When challenging an ALJ’s
exercise of that authority, a plaintiff must show that the ALJ
either
ignored
crucial
portions
of
the
record
or
that
his
credibility finding was patently unreasonable given the evidence in
the record.
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984);
see also Basu-Dugan v. Astrue, No. 1:06CV00007, 2008 WL 3413296, at
*6 (M.D.N.C. Aug. 8, 2008) (unpublished) (holding that credibility
“determinations will be upheld as long as there is some support in
the record for the ALJ’s position and it is not patently wrong”).
In
this
case,
the
ALJ’s
decision
demonstrates
that
he
considered all of the medical and testimonial evidence Plaintiff
claims he ignored.
The decision memorializes Plaintiff’s ability
to drive without restrictions, but notes that he does not drive
often.
(Tr. 24.)
It also reflects his ability to perform at least
some household chores, walk about 30 minutes per day, attend church
services, and “care for young children at home . . . without any
particular assistance.”
(Id.)
Plaintiff argues that the evidence
-18-
highlighted
in
the
decision
fails
to
recount
the
greater
limitations found in the testimony and function reports provided by
Plaintiff and his wife, including the greatly reduced scale of his
household activities, difficulty sitting through church sermons,
and the help he receives, at least on occasion, in caring for his
children.
(Docket Entry 9 at 11-12.)
Plaintiff also claims that
the ALJ ignored his testimony that he would have to lie down during
an eight-hour workday and his posture during the hearing, which
involved him leaning on a table with both arms.
(See id.)
As stated above, however, the ALJ must resolve conflicts in
the record and the decision demonstrates that he did just that in
the present case.
Specifically, as the ALJ’s decision notes, the
record supports a finding that the level of limitation alleged by
Plaintiff is out of character with the evidence as a whole,
particularly
the
objective
medical
evidence.
(Tr.
24-25.)
Clinical findings show a claimant with a 15% back impairment, some
reduced left leg strength, and pain managed well enough through
medication that, in his most recent medical records, his dosage was
reduced. (Tr. 21-23.)
These findings understandably cast doubt on
Plaintiff’s alleged inability to sit through a hearing which lasted
less than an hour.
Plaintiff’s use of a cane at the hearing,
during which he confirmed Dr. Phillips’ finding that Plaintiff
could walk unassisted (Tr. 344), also undermined his credibility,
see Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (ruling
that
ALJ
properly
discounted
plaintiff’s
testimony
where
plaintiff’s use of cane at hearing was inconsistent with medical
-19-
evidence); see also Lowery v. Callahan, No. C96-3701SI, 1997 WL
464832, at *4 (N.D. Cal. July 29, 1997) (unpublished) (plaintiff’s
“‘theatrical attempt’ with [a] cane was unconvincing, undermining
his credibility”); Greyer v. Sullivan, No. 91C3705, 1992 WL 373028,
at *2 (N.D. Ill. Dec. 11, 1992) (unpublished) (same).
In light of
these considerations, the Court cannot conclude that the ALJ either
ignored crucial portions of the record or that his credibility
finding was patently unreasonable given the evidence before him.
Weighing all of the above evidence against the testimony from
Plaintiff and his wife, and considering that the relevant materials
were cited in the decision itself, the ALJ’s credibility analysis
was well-grounded in the evidence and articulated sufficiently to
provide meaningful review, as required by SSR 96-7p.
3.
Past Relevant Work
Plaintiff next challenges the ALJ’s findings at step four of
the SEP, regarding Plaintiff’s ability to return to his past
relevant work.7
Notably, Plaintiff bears the burden of showing his
inability to work.
Hunter, 993 F.2d at 35.
Here, Plaintiff
specifically argues that (1) his continued use of Vicodan for pain
control
and
(2)
his
moderate
limitation
in
concentration,
persistence, and pace prevent him from returning to his work as a
delivery
driver.
(Docket
Entry
7
9
at
9-10.)
According
to
Plaintiff also contests the ALJ’s alternative, step-five
determination that Plaintiff could perform other work which exists
in significant numbers in the national economy. (See Docket Entry
9 at 10-14.)
Because the ALJ did not err at step four, this
Recommendation goes no further.
-20-
Plaintiff, driving under these conditions could pose dangers to
both himself and the public due to drowsiness and inattention and
could also pose liability issues for his employer.
(Id.)
These
contentions lack merit.
As an initial matter, the evidence reflects that Plaintiff
reported only “minimal” side effects from Vicodan use.
292, 300, 313.)
(Tr. 236,
Moreover, neither the hearing transcript nor the
medical records ever mention that Plaintiff experienced drowsiness;
to the contrary, leg pain and nerve damage, rather than any mental
limitations,
driving.
represent
Plaintiff’s
(Tr. 85, 86, 90.)8
only
noted
difficulties
in
The record further confirms that
Plaintiff holds a driver’s license with no restrictions and drives
his own vehicle, including transporting his young children on a
regular basis.
(Tr. 85, 222, 270.)
Under similar circumstances,
courts have held that plaintiffs could return to work as drivers
despite their continued use of narcotics. Rose v. Astrue, No. Civ.
07-5079-RHB,
2008
WL
4274442,
at
*3 (D.S.D.
Sept.
17,
2008)
(unpublished) (ruling that plaintiff could return to work as school
bus or taxi driver where no physician set driving restrictions due
to pain medication side effects and plaintiff continued to drive
throughout the relevant time period); York v. Commissioner of Soc.
Sec., No. 08-cv-321 (PGS), 2008 WL 4936971 (D.N.J. Nov. 17, 2008)
8
Notably, according to Plaintiff’s Physical RFC Assessment,
he is capable of operating hand and foot controls on an unlimited
basis despite continuing issues with his left leg. (Tr. 264.)
-21-
(unpublished) (holding that plaintiff’s continued oxycodone use did
not preclude past relevant work as delivery driver).9
To the extent Plaintiff suggests that his prescription drug
usage, and corresponding side effects, would increase should he
return to work, the record fails to support this assertion.
Dr.
Phillips did note that, according to Plaintiff, “[i]f [Plaintiff]
over exerts, his pain goes up significantly.” (Tr. 296.) However,
for reasons discussed in the preceding subsections, Plaintiff has
the capacity to perform substantial work; nothing in the record
thus required the ALJ to find that Plaintiff’s return to work would
result in overexertion that would cause an increase in pain and
need to medicate. Further, Plaintiff’s most recent medical records
indicate that he had reduced his Vicodan use to just two tablets
per day (Tr. 287) and that, as early as 2002, Dr. Jenkins strongly
recommended that Plaintiff get off of narcotics entirely “as these
medications are addictive and in the long run . . . are not
helpful” (Tr. 156). This evidence supports the view that Plaintiff
could manage his narcotic usage around his work schedule or,
alternatively,
that
control his pain.
he
could
use
non-narcotic
medications
to
Plaintiff has made no showing to the contrary.
Similarly, the record fails to indicate that Plaintiff’s
moderate limitation in concentration, persistence, and pace would
9
The
Ninth
Circuit
recently
remanded
a
case
for
reconsideration of plaintiff’s allegations that mandatory drug
testing requirements would preclude performance of past work as a
driver. Berry v. Astrue, 622 F.3d 1228, 1233-34 (9th Cir. 2010).
Plaintiff, however, has not alleged that such testing requirements
would impact his capacity to perform his prior work.
-22-
preclude his past work.
Dr. Dascal’s Mental RFC Assessment noted
“moderate” limitations in only two sub-categories of “sustained
concentration and persistence,” namely Plaintiff’s abilities to
carry out detailed instructions and to perform at a consistent
pace.
(Tr. 259-60.)
Overall, the examiner found that Plaintiff
“has adequate concentration and persistence” and that, although he
“is anxious and somewhat depressed . . . he is able to understand
and respond to directions, and perform [simple, routine, repetitive
tasks].”
(Tr.
262.)
None
of
these
findings
suggest
that
Plaintiff’s concentration level would create a hazardous situation
behind the wheel.
In sum, substantial evidence supports the ALJ’s
step-four finding that Plaintiff could return to his past work.
4.
Consideration of Evidence by Appeals Council
Finally, Plaintiff argues that “[t]he Commissioner erred in
failing to specifically consider additional evidence submitted at
the Appeals Council level.”
(Docket Entry 9 at 15.) This evidence
primarily consists of Dr. Phillips’ office notes from February 13,
2008, which provide the following:
In my opinion, [Plaintiff’s] inability to work at this
time is based not only on his back problems but the fact
that there’s been some difficulties in controlling his
blood sugar resulting in fluctuation which affect his
mentation.
The patient is limited to sitting no more than three or
four hours total in an eight hour [workday].
With
frequent breaks. He is limited in lifting as outlined
above. I do not feel he can squat or stoop.
(Tr. 314.)
Plaintiff contends that, because the Appeals Council’s
decision failed to specifically mention or to discuss the weight
-23-
given to this opinion, the Appeals Council did not comply with its
“‘duty to scrutinize “the record as a whole” to determine whether
the conclusions reached (by the ALJ) are rational.’” (Docket Entry
9 at 15) (quoting Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.
1964)).
Significantly,
both parties acknowledge
that
the
Appeals
Council need only address new and material additional evidence.
Wilkins v. Secretary of Health & Human Servs., 953 F.2d 93, 95-96
(4th Cir. 1991) (citing Williams v. Sullivan, 905 2d 214, 216 (8th
Cir. 1990)).
“Evidence is new within the meaning of this section
if it is not duplicative or cumulative.”
Id.; see generally
Associate Comm’r of Hearings and Appeals, Soc. Sec. Admin., Pub.
No. 70-074, Hearings, Appeals, Litig., and Law (LEX) Manual, § I-3306(A)(1990).
“Evidence is material if there is a reasonable
possibility that the new evidence would have changed the outcome.”
Wilkins, 953 F.2d at 96 (citing Borders v. Heckler, 777 F.2d 954,
956 (4th Cir. 1985)).
In the present case, Dr. Phillips’ cited notes satisfy neither
of these requirements.
Notably, the medical records reflect
Plaintiff’s long history of poorly controlled diabetes.
148, 207.)
(See Tr.
In fact, a 2003 progress note shows that Plaintiff
“adamantly refused” to start insulin, despite poor control on
“maximum oral therapy.”
(Tr. 207.)
This note also reflects
Plaintiff’s hesitancy to begin recommended counseling at that time.
(Id.)
Thus, Dr. Phillips’ opinion regarding Plaintiff’s diabetes
and related mental issues adds nothing new.
-24-
Likewise, Dr. Phillips’ own earlier treatment note, dated
February 22, 2006, reflects Plaintiff’s statement that he “can
stand for about an hour[,] can sit for about an hour[,] and is
limited to minimal if any bending or squatting.”
(Tr. 304.)
This
evidence belies Plaintiff’s assertion that the “sitting limitations
and total ban on squatting or stooping [described in the records
from
February
13,
dramatically.”
2008]
would
change
(Docket Entry 9 at 15.)
the
vocational
picture
In fact, the opinion
expressed in the note from February 13, 2008, essentially rephrases
Dr. Phillips’ prior statements, which the ALJ declined to give
controlling weight based on the objective medical evidence.
Tr. 24.)
(See
Given the lack of new and material evidence in the
supplemental
record,
the
Appeals
Council
properly
denied
Plaintiff’s request for review.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s motion to
reverse the decision of the Commissioner (Docket Entry 8) be
DENIED, that Defendant’s motion for judgment on the pleadings
(Docket Entry 10) be GRANTED, and that this action be dismissed
with prejudice.
IT IS ORDERED that Plaintiff’s Motion for Prompt Decision
(Docket Entry 14) is DENIED AS MOOT.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Date:
April 16, 2012
-25-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?