GUNTER v. ASTRUE
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 4/30/2014. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be granted, and that this action be dismissed with prejudice. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
STEWART T. GUNTER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
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1:09CV0384
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Stewart T. Gunter, brought this action to obtain
judicial review of a final decision of Defendant, the Commissioner
of Social Security, denying Plaintiff’s claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
under, respectively, Titles II and XVI of the Social Security Act
(the “Act”).
(Docket Entry 1.)
The Court has before it the
administrative record (cited as “Tr. __”), as well as the parties’
cross-motions for judgment (Docket Entries 11, 14).
For the
reasons that follow, the Court should enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging a disability onset
date of November 22, 2000.
1
(Tr. 63-65, 422-25.)
Upon denial both
Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013, resulting in her substitution as Defendant pursuant to Federal Rule of
Civil Procedure 25(d).
initially and on reconsideration (Tr. 37, 38, 426, 431), Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”)
(Tr.
53).
After
a
hearing
at
which
Plaintiff,
his
representative, and a vocational expert appeared (Tr. 484-512), the
ALJ ruled Plaintiff not disabled under the Act (Tr. 432-44).
Appeals Council remanded for further proceedings.
The
(Tr. 451-52.)
The ALJ held another hearing (Tr. 513-16) and again found Plaintiff
not disabled (Tr. 14-26).
The Appeals Council denied review (Tr.
8-10), such that the ALJ’s finding of no disability became the
Commissioner’s final decision for purposes of judicial review.
In
rendering
that
decision,
the
ALJ
made
the
following
findings adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2005.
2.
[Plaintiff] has not engaged in substantial gainful
activity since November 22, 2000, the alleged onset date
(20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and
416.971 et seq.).
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease of the cervical spine,
depression and a personality disorder (20 CFR 404.1520(c)
and 416.920(c)).
. . . .
4.
[Plaintiff] 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,
404.1526, 416.920(d), 416.925 and 416.926).
. . . .
2
5.
. . . [Plaintiff] has the residual functional
capacity to engage in medium work activity with
additional limitations, including performing only simple,
routine, repetitive tasks in a non-production work
environment with only occasional personal interaction.
(Tr. 19-21.)
The ALJ then found that Plaintiff no longer could do his past
work (Tr. 24), but could “perform a significant number of jobs in
the national economy” (Tr. 25).
Accordingly, the ALJ ruled that
Plaintiff did not have a “disability” under the Act.
Plaintiff thereafter instituted this action.
(Tr. 26.)
(Docket Entry 1.)
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 our review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).
“The courts
Oppenheim v. Finch, 495 F.2d
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. 1992) (quoting
3
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
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 [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the 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
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the 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 take 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,
4
“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. (quoting 42 U.S.C. § 423(d)(1)(A)).2
“To regularize
the adjudicative process, the Social Security Administration has
. . . detailed regulations incorporating longstanding medicalvocational 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
2
“The [] Act comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . 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).
5
work or (5) any other work.”
Albright v. Commissioner of the Soc.
Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999).3
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 has no disability.
the claimant
establishes
an
Id. at 179-80.
inability
to do
prior
However, if
work,
the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the 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
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).
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 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
carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
Hines, 453 F.3d at 567.5
claimant qualifies as disabled.
Assignments of Error
Plaintiff argues that, in formulating the RFC (later utilized
to resolve step five against him), the ALJ: (1) improperly weighed
the opinions of three doctors (Docket Entry 12 at 3-7); (2)
impermissibly
adopted
only
a
medium-exertional-level
lifting
limitation (id. at 7-8); and (3) errantly assessed the credibility
of Plaintiff’s symptom reporting (id. at 8-9).
Defendant contends
otherwise and urges that substantial evidence supports the ALJ’s
finding of no disability.
1.
(Docket Entry 15 at 4-18.)
Doctors’ Opinions
Plaintiff challenges the ALJ’s consideration of the opinions
of Dr. Barbara A. Porter, a treating primary care doctor, Dr. James
H. Carter, a treating psychiatrist, and Dr. Safi S. Soliman, a
consultative examining physician.
(Docket Entry 12 at 3-7.)
According to Plaintiff, a treating doctor’s opinion “will be given
controlling
weight
and
may
be
disregarded
persuasive contradictory evidence.”
5
only
if
there
is
(Id. at 3 (citing Foster v.
A claimant thus can qualify as disabled via two paths through the five-step
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 process appear to gloss over the fact that a finding
adverse to 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
Heckler, 780 F.2d 1125, 1130 (4th Cir. 1986)).)
Plaintiff’s
phrasing of the “treating physician rule,” however, no longer
represents the governing standard.
See Stroup v. Apfel, No. 96-
1722, 205 F.3d 1334 (table), 2000 WL 216620, at *5 (4th Cir. Feb.
24,
2000)
(unpublished)
(“The
1991
regulations
supersede
the
‘treating physician rule’ from our prior case law.”); Shrewsbury v.
Chater, No. 94-2235, 68 F.3d 461 (table), 1995 WL 592236, at *2 n.5
(4th Cir. Oct. 6, 1995) (unpublished) (“As regulations supersede
contrary precedent, the cases cited by [the plaintiff] defining the
scope of the ‘treating physician rule’ decided prior to 20 C.F.R.
§ 416 and related regulations are not controlling.” (internal
citation omitted)); accord Brown v. Astrue, Civil Action No. CBD10-1238, 2013 WL 937549, at *4 (D. Md. Mar. 8, 2013) (unpublished);
Benton v. Astrue, Civil Action No. 0:09-892-HFF-PJG, 2010 WL
3419272, at *1 (D.S.C. Aug. 30, 2010) (unpublished); Pittman v.
Massanari, 141 F. Supp. 2d 601, 608 (W.D.N.C. 2001); Ward v.
Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996).
The
applicable
rule
generally
requires
an
ALJ to give
controlling weight to a treating physician’s opinion about a
claimant’s impairment(s), on the ground that treating physicians
provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) [which] may bring a
unique perspective 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.
8
20
C.F.R.
§§
404.1527(d)(2),
416.927(d)(2).6
The
rule
also
recognizes, however, that not all treating physician opinions
deserve such deference.
First, the nature and extent of each treatment relationship
may temper the weight afforded.
416.927(d)(2)(ii).
Further,
20 C.F.R. §§ 404.1527(d)(2)(ii),
a
treating
physician’s
opinion
controls only if well-supported by medical signs and laboratory
findings and consistent with the other substantial evidence in the
record.
20
C.F.R.
§§
404.1527(d)(2)-(4),
416.927(d)(2)-(4).
Plaintiff’s assertion that “the opinion of a treating physician
when accompanied by clinical and diagnostic techniques is entitled
to
controlling
weight”
(Docket
Entry
12
at
3),
ignores
the
regulatory requirement that, for a treating physician’s opinion to
receive controlling weight, it not only must rest upon clinical
evidence, but also must cohere with other substantial evidence of
record.
See Craig, 76 F.3d at 590 (“[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.” (emphasis added)).
Finally, opinions regarding
issues reserved to the Commissioner do not receive controlling
weight.
20 C.F.R. §§ 404.1527(e), 416.927(e).
6
Effective March 26, 2012, a regulatory change recodified the treating physician
rule, but did not alter its substantive content. See 77 Fed. Reg. 10651–10657
(Feb. 23, 2012). Given that all material events in this action preceded that
non-substantive change, this Recommendation cites the prior codification.
9
a.
Dr. Porter’s Opinion
According to Plaintiff, “the ALJ failed to properly evaluate
Dr. Porter’s opinion.”
not
support
that
(Docket Entry 12 at 4.)
contention.
Specifically,
The record does
in
formulating
Plaintiff’s RFC, the ALJ observed that, following an examination on
July 10, 2001 (see Tr. 339), Dr. Porter referenced Plaintiff’s
“chronic[] weak[ness] secondary to neuropathy and proximal muscle
weakness” and opined that Plaintiff could not “stand for any
duration greater than ten minutes and could only walk so far as
from room to room.”
(Tr. 22 (citing Tr. 309); see also Tr. 342
(setting forth Dr. Porter’s statement, after her first visit with
Plaintiff on April 9, 2001, that he “appears to [suffer] peripheral
neuropathy and proximal muscle weakness” as an after-effect of
alcohol-related liver disease).)
The ALJ, however, deemed that
“assessment . . . not supported by objective clinical findings and
. . . conclusory.”
(Tr. 22.)
In that regard, the ALJ cited the
absence of “definitive testing . . . to support a diagnosis of
alcoholic
neuropathy,
and
repeat[ed]
examinations
show[ing]
[Plaintiff] has a normal gait and stance, does not walk with an
assistive device, has normal coordination, and has normal sensation
and motor strength.”
(Id.)
Plaintiff’s challenge to that decision-making does not dispute
that the record both lacks evidence of testing substantiating a
diagnosis
of
alcoholic
neuropathy
10
and
contains
evidence
consistently
documenting
Plaintiff’s ability
to
walk normally
(including from coordination and strength perspectives).
Docket Entry 12 at 3-4.)
(See
Instead, as clinical evidence supporting
Dr. Porter’s opinions, Plaintiff cites only that, on April 9, 2001,
Dr. Porter “noted that [Plaintiff] was unable to stand from a
sitting position without using his hands for support.” (Id. at 4.)
These circumstances do not establish reversible error.
An ALJ must give “good reasons” for discounting a treating
physician’s opinion by applying the factors set out in 20 C.F.R.
§§ 404.1527(d) and 416.927(d).
“[T]he duty of explanation will be
satisfied when the ALJ presents ‘[a reviewing court] with findings
and determinations sufficiently articulated to permit meaningful
judicial review,’ which must include specific reference to the
evidence producing [the ALJ’s] conclusion.”
Wyatt v. Bowen, No.
89-2943, 887 F.2d 1082 (table), 1989 WL 117940, at *4 (4th Cir.
Sept. 11, 1989) (unpublished) (quoting DeLoatche v. Heckler, 715
F.2d 148, 150 (4th Cir. 1983), and citing Hammond v. Heckler, 765
F.2d 424, 426 (4th Cir. 1985)); see also Fisher v. Bowen, 869 F.2d
1055, 1057 (7th Cir. 1989) (“No principle of administrative law or
common sense requires us to remand a [Social Security] case in
quest of a perfect opinion [from an ALJ] unless there is reason to
believe that the remand might lead to a different result.”).
Here,
the
ALJ
adequately
identified
valid
grounds
(not
contested by Plaintiff) for discounting Dr. Porter’s opinions and
11
any failure by the ALJ to explicitly discuss Dr. Porter’s one-time
observation of Plaintiff’s inability to stand without using his
hands for support represents, at most, an immaterial oversight. As
detailed above, the ALJ expressly considered Dr. Porter’s opinions,
before explaining how the absence from the record of specific forms
of evidence and the presence in the record of other forms of
evidence
undermined
Dr.
Porter’s
conclusions.
Plaintiff’s
assignment of error on this point thus lacks merit.
b.
Dr. Carter’s Opinion
Plaintiff also asserts that the ALJ failed to properly address
statements by Dr. Carter that Plaintiff suffered from cognitive
impairment and that his mental condition rendered him “unable to
pursue or sustain competitive employment.”
(citing Tr. 267, 359).)
statement
employment
that
As an initial matter, Dr. Carter’s
Plaintiff
could
not
(Docket Entry 12 at 4
lacked
receive
the
capacity
controlling
for
weight
competitive
due
reservation of that ultimate question to the Commissioner.
C.F.R. §§ 404.1527(e), 416.927(e).
to
the
See 20
Further, the ALJ expressly
considered Dr. Carter’s conclusion in that regard, but declined to
afford it “great weight.”
determination,
the ALJ
(Tr. 22-23.)
noted
several
As grounds for that
specific
inconsistencies
between Dr. Carter’s opinion that Plaintiff’s mental condition
effectively precluded him from participating in the employment
marketplace and Dr. Carter’s own treatment notes, as follows:
12
[R]eports of clinical examinations by Dr. Carter show
[Plaintiff’s] depression can be successfully controlled
with medication as examinations show [Plaintiff] has not
exhibited psychotic features, has not shown signs of
homicidal or suicidal ideations, does not have problems
with his memory and judgment and does not have sleep or
appetite disturbances when he takes his medications as
prescribed. Repeat examinations show [Plaintiff] has not
been in emotional distress and that improvement was
reported with medication.
(Tr. 23.)
The ALJ also observed that Dr. Carter’s assignment to
Plaintiff of a Global Assessment of Functioning (“GAF”) score of 62
contradicted the simultaneous conclusory report that Plaintiff
could not function in a workplace.
(Id.)7
These considerations
led the ALJ to conclude that Dr. Carter’s own clinical observations
“do not support a finding of a complete inability to work.”
Substantial evidence supports that conclusion.
(Id.)8
First, Dr.
Carter’s treatment notes consistently reflect that examinations of
Plaintiff revealed coherent thought processes, no evidence of
hallucinations
or
delusions,
intact
judgment,
no
psychotic
features, clear and spontaneous speech, and no difficulties with
memory or concentration. (See Tr. 317-18, 322, 327, 357, 360, 368,
7
GAF provides “a standard measurement of an individual’s overall functioning
level ‘with respect only to psychological, social, and occupational
functioning.’” Boyd v. Apfel, 239 F.3d 698, 700 n.2 (5th Cir. 2001) (quoting
American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders
32 (4th ed. 1994)). A GAF score between 61-70 indicates “[s]ome mild symptoms
. . . OR some difficulty in social, occupational, or school functioning . . . but
generally functioning pretty well. . . .” American Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders 34 (4th ed. rev. 2000) (“DSM-IV-TR”)
(emphasis added).
8
The ALJ considered whether the record supported the view that Plaintiff
suffered from a complete inability to work because Dr. Carter expressed that
opinion, not (as suggested by Plaintiff (see Docket Entry 12 at 5)) because the
ALJ misunderstood the disability standard (i.e., that, in certain contexts,
individuals with some capacity for work still could qualify as disabled).
13
372, 375, 377, 387, 389, 393, 397.)
Additionally, on several
occasions Dr. Carter described Plaintiff as stable or making
progress.
(See Tr. 357, 360, 372, 387, 397.)
Plaintiff points out
that Dr. Carter once referred to Plaintiff as cognitively impaired.
(Docket Entry 12 at 4 (citing (Tr. 359).)
However, even in that
instance, Dr. Carter did not identify the level of any such
impairment. (See Tr. 359.) Moreover, in the other instances where
Dr. Carter mentioned Plaintiff’s cognitive ability, he reported no
such impairment.
(See Tr. 327, 329, 387, 397.)
In sum, the record
provides no grounds for relief related to Dr. Carter’s opinion.
c.
Dr. Soliman’s Opinion
In
addition,
Plaintiff
argues
that
the
ALJ
improperly
discounted the opinion of Dr. Soliman, a consulting physician, that
Plaintiff “could lift no more than 30 pounds occasionally and could
stand and walk no more than four hours in an eight hour day.”
(Docket Entry 12 at 6.)9
Upon examination, Dr. Soliman found
Plaintiff able to sit comfortably on the examination table, as well
as capable of getting on and off the examination table and taking
his shoes off, all without difficulty.
9
(Tr. 269.)
Dr. Soliman
As a consulting physician who examined, but did not treat, Plaintiff Dr.
Soliman’s opinions cannot, as a general matter, qualify for controlling weight
in the manner that a treating physician’s opinions might. See Koonce v. Apfel,
No. 98-1144, 166 F.3d 1209 (table), 1999 WL 7864, at *3 (4th Cir. 1999)
(unpublished). Moreover, although “an examining physician’s opinion is generally
accorded more weight than a non-examiner’s opinion, if an opinion is not
supported by clinical evidence or if it is inconsistent with other substantial
evidence, it should be accorded significantly less weight.”
Harder v.
Commissioner of Soc. Sec., No. 6:12CV69, 2014 WL 534020, at *4 (W.D. Va. Feb. 10,
2014) (unpublished) (internal quotation marks omitted).
14
further described Plaintiff’s gait as normal and noted the absence
of any assistive device.
(Tr. 270.)
Dr. Soliman’s examination
also confirmed that Plaintiff had normal range of motion in his
back and
extremities,
no muscle
bilateral motor strength.
spasms
or edema,
(Tr. 270, 272-73.)
and
normal
Dr. Soliman then
concluded:
Based on the objective evidence of my examination,
[Plaintiff] could be expected to stand and walk for four
hours in an eight-hour workday with frequent breaks
because of the bilateral leg weakness. [Plaintiff] could
be expected to sit with no restrictions in an eight-hour
workday. He does not need any assistive device. He can
carry and lift up to 30 pounds occasionally.
(Tr. 270.)
Dr. Soliman’s foregoing determination fails to identify what,
if any, clinical evidence from the examination indicated that
Plaintiff suffered from any leg weakness, much less such weakness
as would have supported the standing and walking restrictions Dr.
Soliman proposed.
(See Tr. 269-71.)
Nor, in connection with this
assignment of error, did Plaintiff point to any such clinical
evidence in Dr. Soliman’s report.
(See Docket Entry 12 at 6-7.)
Moreover, as noted above, in discounting Dr. Porter’s opinion that
Plaintiff lacked the capacity for any extended walking or standing,
the ALJ expressly found (and Plaintiff failed to contest) that
“repeat[ed] examinations show[ed] [Plaintiff] has a normal gait and
stance,
does
not
walk
with
an
assistive
devise,
has
normal
coordination, and has normal sensation and motor strength.”
15
(Tr.
22.)
“[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.”
at 590.
Craig, 76 F.3d
Accordingly, any failure by the ALJ to make specific
reference to Dr. Soliman’s opinion about standing or walking
restrictions represents, at most, harmless error.
See, e.g.,
Fisher, 869 F.2d at 1057 (“No principle of administrative law or
common sense requires us to remand a [Social Security] case in
quest of a perfect opinion [from an ALJ] unless there is reason to
believe that the remand might lead to a different result.”).
Additionally, the ALJ expressly determined that Dr. Soliman’s
opinion
regarding
Plaintiff’s
lifting
ability
should
receive
limited weight because it did not match Dr. Soliman’s own objective
clinical findings and because, “[w]ithout positive findings on
examination, the limitation in lifting only 30 pounds occasionally
is not supported by the evidence.”
(Tr. 22.)
In other words,
consistent with precedent, the ALJ declined to lend significant
weight to Dr. Soliman’s proposed lifting limitation, because it was
“not supported by clinical evidence [and was] inconsistent with
other substantial
evidence,”
Craig,
76
F.3d
at 590.
Again,
Plaintiff failed to cite evidence that would require the Court to
overturn that finding by the ALJ.
16
(See Docket Entry 12 at 6-7.)
2.
Lifting Limitation
Plaintiff’s next assignment of error contends that the ALJ
failed to justify the inclusion within the RFC of a finding that
Plaintiff
could
frequently.
lift
50
pounds
occasionally
(Docket Entry 12 at 7.)
and
25
pounds
According to Plaintiff,
“[t]he only weight limitation given by an acceptable medical source
. . . cited in [the] opinion was the 30 pound lifting restriction
given by Dr. Soliman.
Other than that, [the ALJ] cites no other
restrictions by medical sources supporting the stated [RFC].” (Id.
at 7-8 (emphasis added).)
The RFC measures the most a claimant can still do despite any
physical and mental limitations.
Hines, 453 F.3d at 562.
In that
regard, the regulations require an assessment of how a claimant’s
exertional limitations relate to the ability to perform a given
level of work (i.e., sedentary, light, medium, heavy, or very
heavy).
20 C.F.R. §§ 404.1567, 416.967.
Medium work requires the
capacity to lift up to 50 pounds occasionally and 25 pounds
frequently.
20 C.F.R. §§ 404.1567(c), 416.967(c).
Here, the ALJ
determined that Plaintiff could do “‘medium’ work activity with
additional limitations, including performing only simple, routine,
repetitive tasks in a non-production work environment with only
occasional personal interaction.”
Plaintiff
evidence
(Tr. 21.)
does
not
argue
that
lacks
medical
supporting
the
RFC’s
medium-exertional-level
lifting
17
the
record
limitation; instead, he asserts only that the ALJ failed adequately
to cite such evidence.
(See Docket Entry 12 at 7-8.)
In fact, the
ALJ’s RFC finding matches the RFC assessments of three state agency
non-examining physicians, Drs. William Roble, Robert Pyle, and
Robert Gardner, each of whom reviewed the medical evidence of
record
and
concluded
Plaintiff
could
occasionally and 25 pounds frequently.
297-304.)
lift
up
to
50
pounds
(See Tr. 213-20, 240-47,
Moreover, apart from the opinion of Dr. Soliman, which
(for reasons set forth above) the ALJ reasonably discounted,
Plaintiff identifies nothing in the record that would call into
question the adoption of a medium-exertional lifting limit.
(See
Docket Entry 12 at 7-8.) Under these circumstances, “[t]he opinion
of [the] state agency physician[s] constitutes substantial evidence
in support of the ALJ’s decision.”
RLV-DSC,
2011
WL
7938408,
at
Atwood v. Astrue, No. 5:11CV2-
*4
(W.D.N.C.
Sept.
28,
2011)
(unpublished), recommendation adopted, 2012 WL 1858764 (W.D.N.C.
May 22,
2012)
(unpublished);
see
also Mullis
v.
Colvin,
No.
1:11CV22, 2014 WL 575722, at *6 (M.D.N.C. Feb. 11, 2014) (Webster,
M.J.) (“[E]vidence from non-examining physicians—such as the state
agency consultants in this case—can constitute substantial evidence
to support a finding of non-disability to the extent they are
consistent with the record.”).
Plaintiff’s position thus collapses into the claim that the
omission from the ALJ’s decision of explicit reference to the
18
opinions of Drs. Roble, Pyle and Gardner requires reversal.
Court should reject that contention.
The
See, e.g., Fisher, 869 F.2d
at 1057 (“No principle of administrative law or common sense
requires us to remand a [Social Security] case in quest of a
perfect opinion [from an ALJ] unless there is reason to believe
that the remand might lead to a different result.”).
3.
Symptom Credibility
As a final matter, Plaintiff asserts that the ALJ improperly
assessed the credibility of Plaintiff’s subjective complaints of
pain
and
Plaintiff
other
limiting
specifically
symptoms.
contends
the
(Docket
ALJ
Entry
failed
to
12
at
8.)
adequately
address Plaintiff’s testimony “that he tires very easily despite
efforts to try to increase his endurance” (id. at 9 (citing Tr.
498)), that he endures “pain in his arms and the back of his neck”
(id. (citing Tr. 499)), “that it hurts to pick up objects weighing
as little as 5 pounds” (id. (citing Tr. 501)), “that he doesn’t
have any activities outside of his home (id. (citing Tr. 506)), and
“that he has significant difficulties with concentration” (id.
(citing Tr. 505)).
As a result, Plaintiff states that “the
decision should be remanded for further hearing.”
Id.
The Social Security Administration’s Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements
(“SSR 96-7p”), as applied by the Fourth Circuit in Craig, 76 F.3d
19
at 594-95, provides a two-part test for evaluating a claimant’s
statement about symptoms.
“First, there must be objective medical
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.’”
§§ 404.1529(b) & 416.929(b)).
on that issue.
Id. at 594 (quoting 20 C.F.R.
The ALJ ruled on Plaintiff’s favor
(Tr. 23-24.)
At step two of the process, the ALJ must evaluate the alleged
intensity and persistence of the claimant’s reported symptoms and
the extent of the resulting impact on the claimant’s ability to
work.
Craig, 76 F.3d at 595 (citing 20 C.F.R. §§ 404.1529(c)(1) &
416.929(c)(1)).
In making this evaluation, the ALJ:
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, any objective medical evidence
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), 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.
Id. (internal citations and quotation marks omitted).
Here,
the
ALJ
made
the
following
findings
regarding
Plaintiff’s credibility:
[Plaintiff’s] allegations of pain are not considered
fully credible as he has not sought continuous treatment
with complaints of neck pain and has not been prescribed
extensive pain medication.
If [Plaintiff] were
experiencing severe pain, it is reasonable to assume he
20
would continue to seek treatment complaining of such pain
and would be prescribed appropriate pain medication.
[Plaintiff] is only taking Tylenol with codeine for his
complaints of neck pain.
While there is mention in the
record that [he] has alleged he cannot afford medication,
the evidence does not show he has sought alternative
methods of obtaining such medication, including samples
from physicians.
No surgical intervention has been
recommended for [Plaintiff] and [he] has not been
referred for evaluation by an orthopedist or neurological
surgeon.
Neither are [Plaintiff’s] daily activities
severely limited as a result of pain as he reported he
helps with housework and cleaning, goes shopping, drives
and operates a computer for personal use.
For these
reasons, [Plaintiff’s] subjective allegations are not
considered fully credible.
(Tr. 24.)
The entirety of Plaintiff’s challenge to the ALJ’s foregoing
analysis appears as follows:
“[The ALJ] listed several types of
treatments that are indicative of a person with severe pain and
stated that [Plaintiff] did not receive these treatments.
[The
ALJ] then chastise[d] [Plaintiff] for not being able to receive
more charity care by finding that his testimony was not credible.”
(Docket Entry 12 at 9.)
A fair reading of the ALJ’s above-quoted
credibility determination confirms that the ALJ did not decide the
issue in the manner Plaintiff suggests.
To the contrary, the ALJ
focused on the absence of evidence both that Plaintiff consistently
sought
treatment
for
pain
and
that
any
medical
professional
prescribed significant pain medication to Plaintiff or referred him
to a specialist for further treatment, as well as the presence of
evidence that Plaintiff engaged in daily activities inconsistent
with disabling pain.
(See Tr. 24.)
21
Plaintiff has failed to
contest the foundation in the record for those findings and to cite
any authority suggesting that such findings represent insufficient
grounds for an adverse credibility determination.
Entry 12 at 8-9.)
(See Docket
This assignment of error thus falls short.
See
Basu-Dugan v. Astrue, No. 1:06CV00007, 2008 WL 3413296, at *6
(M.D.N.C. Aug. 8, 2008) (unpublished) (recommendation of Eliason,
M.J.,
adopted
by
Schroeder,
J.)
(stating
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”);
see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[A] litigant
has
an
obligation
to spell
out
its arguments
squarely and distinctly, or else forever hold its peace.” (internal
quotation marks omitted)).
CONCLUSION
Plaintiff has established no basis for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
11)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 14)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 30, 2014
22
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