WADE v. ASTRUE

Filing 17

MEMORANDUM OPINION & ORDER signed by JUDGE CATHERINE C. EAGLES on 4/15/2013, that the Commissioner's decision finding no disability is AFFIRMED, that Mr. Wade's motion for judgment on the pleadings (Docket Entry 12 ) seeking a reversal of the Commissioner's decision is DENIED, that Defendant's motion for judgment on the pleadings (Docket Entry 14 ) is GRANTED, and that this action is dismissed with prejudice. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RICHARD A. WADE,
Plaintiff,
v.
CAROLYN W. COLVIN1,
Commissioner of Social Security,
Defendant.

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1:09-CV-705

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
The plaintiff, Richard A. Wade, brought this action pursuant to Section 205(g) of the Social
Security Act (the AAct@), as amended (42 U.S.C. ' 405(g)), to obtain judicial review of a final
decision of the Commissioner of Social Security denying his claims for Disability Insurance
Benefits under Title II of the Act. The parties have filed cross-motions for judgment and the
administrative record has been certified to the Court.
PROCEDURAL HISTORY
Mr. Wade filed an application for Disability Insurance Benefits (ADIB@) in 2005. (Tr.
143.) His application was denied initially and upon reconsideration. (Tr. 45-46.) After a
hearing de novo before an Administrative Law Judge (AALJ@), the ALJ determined that Mr. Wade
was not disabled within the meaning of the Act. (Tr. 47.) On August 10, 2009, the Appeals

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted for Michael J.
Astrue as the Defendant in this suit. The lawsuit automatically continues, per the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. ' 405(g).
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Council denied Mr. Wade=s request for review of the ALJ=s decision (Tr. 1), thereby making it the
Commissioner's final decision for purposes of judicial review.
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 March 31, 2011.
2.
The claimant has not engaged in substantial gainful activity since March 5,
2005, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: hepatitis C with
chronic fatigue; right elbow chronic lateral epicondylitis, status post repair of torn
extensor tendon; and slight right L5-S1 and left L4-5 facet degenerative joint space
narrowing (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 404.1525 and 404.1526).
5.
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to engage in medium work as
defined in 20 CFR 404.1567(c) with the following exceptions: claimant=s right grip
strength is slightly diminished to 42/5 but he can still manipulate small objects.
He should avoid continuous and/or rapid pushing and pulling with his right upper
extremity. He can occasionally balance but should never climb ladders, ropes or
scaffolds. Furthermore, he should avoid concentrated exposure to unprotected
heights and moving machinery.
(Tr. 52-55.)
The ALJ found that Mr. Wade could not perform any past relevant work (Tr. 58), but that
based on relevant considerations, including Mr. Wade=s residual functional capacity (ARFC@), age,
education, work experience, and the VE=s testimony, there are Aa significant number of jobs” Mr.
Wade could perform. (Tr. 60.) The ALJ accordingly found that Mr. Wade has not been under a
Adisability,@ as defined in the Act. (Tr. 60.)

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DISCUSSION
Federal law Aauthorizes judicial review of the Social Security Commissioner=s denial of
social security benefits.@ Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The scope of
this review is “extremely limited.@ Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). AThe
courts are not to try the case de novo.@ Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead, Aa reviewing court must uphold the factual findings of the ALJ if they are
supported by substantial evidence and were reached through application of the correct legal
standard.@ Hines, 453 F.3d at 561 (internal brackets and quotation marks omitted). ASubstantial
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 Richardson v.
Perales, 402 U.S. 389, 390 (1971)). A reviewing court does not undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). 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).
AA claimant for disability benefits bears the burden of proving a disability.@ Hall v.
Harris, 658 F.2d 260, 264 (4th Cir. 1981). ATo 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. AThese regulations establish a
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>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. Comm=r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999).
Assignments of Error
Mr. Wade contends that substantial evidence does not support the ALJ=s findings at steps
three and four. In particular, he contends that the ALJ (1) improperly evaluated the opinions of
Mr. Wade=s treating physicians and the opinion of an examining consulting physician; (2)
improperly evaluated Mr. Wade=s credibility regarding his subjective pain and other symptoms;
(3) mechanically applied age categories contrary to 20 C.F.R. ' 404.1563; and (4) failed to
formulate an RFC assessment supported by substantial evidence. (Docket Entry 13 at 4-10.)
Defendant contends otherwise and urges that substantial evidence supports the determination that
Mr. Wade was not disabled. (Docket Entry 15 at 15.)
1. Treating and Consulting Physician Opinions
Mr. Wade challenges the ALJ=s consideration of the opinions of Dr. William A. Gramig,
Mr. Wade=s treating orthopaedist, Dr. R. Nevill Gates, Mr. Wade=s primary care physician, and Dr.
Alan A. Rosenbloom, a consulting examining physician. (Docket Entry 13 at 4-7.)
The treating physician rule generally requires an ALJ to give more weight to the opinion of
a treating source about the nature and severity of a claimant=s impairment, on the ground that
treating sources
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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.
20 C.F.R. ' 404.1527(c)(2). The rule also recognizes, however, that not all treating sources or
treating source opinions are created equal. The nature and extent of each treatment relationship
appreciably tempers the weight an ALJ affords it. 20 C.F.R. ' 404.1527(c)(2)(ii). A[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 ; see
20 C.F.R. ' 404.1527(c)(2)-(4). Finally, opinions by physicians about the ultimate issue of
disability within the meaning of the Social Security Act do not receive controlling weight because
that issue is reserved for the Commissioner alone. 20 C.F.R. ' 404.1527(d).
a.

Dr. Gramig=s Opinion

Mr. Wade contends that the ALJ committed reversible error by failing to Aarticulate his
reasons for completely disregarding Dr. Gramig=s numerous treating source opinions/restrictions
in violation of [20 C.F.R.] ' 404.1527(d)(2).@ (Docket Entry 13 at 5.) Generally, an ALJ must
explicitly state the weight given to all relevant evidence, including medical source opinions.
Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). However, no principle of administrative
law or common sense requires a remand in quest of a perfect opinion from an ALJ. Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989); Botta v. Barnhart, 475 F. Supp. 2d 174, 188
(E.D.N.Y. 2007) (observing that failure to explicitly discuss certain matters Adoes 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@).

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In the present case, the ALJ considered Dr. Gramig=s opinion in evaluating Mr. Wade=s
allegations of right elbow pain and weakness and discussed that opinion in detail. (Tr. 56.)
While Mr. Wade is correct that the ALJ failed to expressly state the weight given to Dr. Gramig’s
opinion regarding weight restrictions and failed to expressly explain why he disregarded that
opinion, it is clear from the ALJ’s decision that he reviewed Dr. Gramig’s record carefully and he
expressly weighed Dr. Gramig’s opinions in light of the opinions of Dr. Rosenbloom. An ALJ is
not required to recite each and every piece of evidence in his decision. Scott ex rel. Scott v.
Astrue, 529 F.3d 818, 822 (8th Cir. 2008). Based on a review of the entirety of the record, there is
substantial evidence to support the ALJ=s decision.
b.

Dr. Gates= Opinion

The ALJ fully considered Dr. Gates= opinion that Mr. Wade was disabled but gave it
Arelatively little weight@ on the basis that Dr. Gates= own treatment notes failed to support the
opinion. Instead, Dr. Gates relied heavily on Mr. Wade=s subjective complaints in forming his
opinion. (Tr. 58.) Mr. Wade contends that the ALJ committed reversible error by neglecting Ato
specify any inconsistencies between Dr. Gates= opinion and the weight of the medical evidence,@
and thus failed to provide reasonable justification pursuant to 20 C.F.R. ' 404.1527(d)(1)-(2) for
rejecting the opinion. (Docket Entry 13 at 6.); see DeLoatche v. Heckler, 715 F.2d 148, 150 (4th
Cir. 1983); Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985).
Here, the ALJ=s factual findings, considered in light of the record as a whole, are sufficient
to permit the Court to conclude that substantial evidence supports the decision. The ALJ
considered Dr. Gates= opinion that Mr. Wade=s chronic fatigue from hepatitis C was disabling, but
correctly noted that Dr. Gates described Mr. Wade=s liver function tests as A>actually relatively
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normal.=@ (Tr. 57(quoting Tr. 535).) This is consistent with other treatment notes, which
described Mr. Wade=s liver function results being only minimally elevated (Tr. 487), Arelatively
tame@ (Tr. 297), “mildly elevated,” (Tr. 490, 493), asymptomatic (Tr. 406), or persistently elevated
but quite low. (Tr. 500.) The ALJ considered Dr. Gates= opinion that Mr. Wade=s right elbow
pain was disabling, but also made note of evidence contrary to the opinion, including objective
medical findings by Drs. Gramig and Rosenbloom, as well as Mr. Wade=s testimony regarding his
daily activities and his minimal use of pain medication. (Tr. 56-57.) Moreover, while the ALJ
should consider opinion testimony by treating physicians about disability, Dr. Gates= statement
that Mr. Wade is disabled is not entitled to controlling weight, since that is ultimately a legal issue
for the ALJ. 20 C.F.R. ' 404.1527(d). Because the ALJ considered this relevant evidence and
adequately explained why he did not agree with it, there is no error.
c.

Dr. Rosenbloom=s Opinion

Mr. Wade next contends that the ALJ erred in failing to mention and give weight to
findings by Dr. Rosenbloom that hand manipulations increase pain in Mr. Wade=s elbow with
rapidly increasing pain resulting from picking up or carrying significant weight and that Mr.
Wade=s right elbow pain impaired his ability to lift, carry and repetitively manipulate small
objects. (Docket Entry 13 at 6.) While the ALJ did not discuss this specific part of Dr.
Rosenbloom=s opinion, any error is harmless.
As noted supra, the ALJ need not recite every piece of relevant evidence. Scott ex rel.
Scott, 529 F.3d at 822. Moreover, this part of Dr. Rosenbloom’s opinion was based not on
objective findings, but instead on purely subjective complaints, and the ALJ elsewhere adequately
set forth his reasoning for rejecting Mr. Wade’s descriptions of the degree of his incapacity. See
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infra. Lack of supporting clinical documentation and diagnoses based merely upon a claimant=s
subjective complaints are legitimate grounds for rejecting a physician=s opinion. See Mastro, 270
F.3d at 178; see also Kurzon v. U.S. Postal Serv., 539 F.2d 788, 796 (1st Cir. 1976) (discussing
harmless error).
2.

Credibility Assessment
Mr. Wade contends that the ALJ erred in finding Mr. Wade not fully credible. (Docket

Entry 13 at 7-9.) In evaluating the intensity and persistence of the claimant's pain, and the extent
to which it affects his ability to work, the fact finder:
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.
Craig, 76 F.3d at 595. (internal citations and quotation marks omitted).
Here, the ALJ found that Mr. Wade=s complaints were not supported by objective medical
evidence and noted Mr. Wade=s Aroutine and conservative@ medical treatment history, his only
occasional use of pain medication, and his daily activities, including household chores, driving,
and shopping. (Id.) The ALJ concluded that these factors were Ainconsistent with an
incapacitating or debilitating condition@ and that Mr. Wade=s statements were not sufficiently
credible to warrant more restrictive limitations. (Id.)
Mr. Wade contends that the ALJ erred in assessing Mr. Wade=s credibility by failing to
consider the Aentire case record.@ (Docket Entry 13 at 7.) Mr. Wade cites to selected pieces of
evidence from the record (see Docket Entry 13 at 8-9), and asserts that the ALJ Afail[ed] to discuss
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any of these facts.@ (Docket Entry 13 at 8.) Mr. Wade further contends that the ALJ incorrectly
interpreted Mr. Wade=s activities of daily living, pointing to a statement to Dr. Gramig that he is
unable to perform daily activities at a Apain-free@ level, and testimony that he has difficulty with
daily tasks and has reason to be depressed. (Docket Entry 13 at 9.)
The ALJ need not, however, recount each piece of evidence in making a credibility
assessment. See Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). In evaluating Mr.
Wade=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).
Mr. Wade has not shown that the ALJ 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). The ALJ=s decision demonstrates that he adequately
considered the evidence, including Mr. Wade=s subjective complaints. (Tr. 55.) The ALJ=s
credibility analysis was well-grounded in the evidence and articulated sufficiently to provide
meaningful review.
Mr. Wade also contends that the ALJ erred in relying on Dr. Gates’ notes about one normal
liver test to reject Mr. Wade’s testimony about fatigue resulting from his chronic hepatitis C. The
ALJ=s decision accurately reflects Dr. Gates= medical findings on the date at issue, and, as
summarized supra, Mr. Wade=s liver function was for years described as Astable,@ Aasymptomatic,@
Atame,@ Aminimally elevated,@ and Arelatively normal.@2
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The ALJ also properly considered that Mr. Wade continued to drink alcohol despite repeated
exhortations by health care professionals to discontinue. (See Tr. 299-303, 380-82, 386-91, 408,
410, 471, 473, 487, 490, 495, 535). See also English v. Shalala, 10 F.3d 1080, 1084 (4th Cir.
1993)(failure to follow prescribed treatment properly considered as a factor in evaluating a
claimant's credibility).
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3.

Application of Age Categories
Mr. Wade next contends that the ALJ violated 20 C.F.R. ' 404.1563 by mechanically

applying age categories. (Docket Entry 13 at 9-10.) Mr. Wade contends that because he turned
55 years old six months after his alleged onset date, he fell into a borderline category and should
have been considered in the advanced age category. (Id.)
Mr. Wade fails to cite, and the Court is unable to locate, any place in the ALJ=s decision
where he Amechanically applied@ any age category in finding Mr. Wade not disabled. Indeed, the
ALJ specifically stated that he considered Mr. Wade=s age in making his determination. (See Tr.
59.) The VE was asked to consider a hypothetical claimant with an age range 54-58, which
accurately reflects Mr. Wade=s age range from his alleged onset date to the date of the hearing.
(See Tr. 35.) Thus, based on the clear language of the ALJ=s decision and the transcript of the
hearing, there is no error.
4.

RFC
Mr. Wade contends finally that the ALJ=s RFC assessment, and specifically, the finding

that Mr. Wade=s right grip strength is slightly diminished to 42/5, is not supported by substantial
evidence; instead, the weight of the evidence Aindicates@ that Mr. Wade is unable to lift more than
twenty pounds and cannot perform prolonged gripping, grasping, or twisting, or any repetitive
flexion, extension, pronation or supination. (Docket Entry 13 at 10, citing Tr. 340.)
An RFC measures the most a claimant can still do despite his physical and mental
limitations. Hines, 453 F.3d at 562; 20 C.F.R. ' 404.1545(a). An ALJ determines a claimant=s
RFC only after he considers all relevant evidence of a claimant=s impairments, such as his ability to

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sit-stand, push-pull, lift weight, walk, etc., as well as any related symptoms, including pain.
Hines, 453 F.3d at 562-63.
Here, Mr. Wade contends that the ALJ should have applied the weight limitations
expressed by Dr. Gramig. (Docket Entry 13 at 10.) The Court has already addressed the ALJ=s
treatment of Dr. Gramig=s opinion and found no error. The RFC findings are supported by
substantial evidence.
IT IS THEREFORE ORDERED that the Commissioner=s decision finding no disability
is AFFIRMED, that Mr. Wade=s motion for judgment on the pleadings (Docket Entry 12) seeking
a reversal of the Commissioner=s decision is DENIED, that Defendant=s motion for judgment on
the pleadings (Docket Entry 14) is GRANTED, and that this action is dismissed with prejudice.
This the 15th day of April, 2013.

________________________________
UNITED STATES DISTRICT JUDGE

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