BUNTON v. ASTRUE
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/18/2014; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 12 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 15 ) be granted, and that this action be dismissed with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SAMUEL W. BUNTON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
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1:10CV786
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Samuel W. Bunton, brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)), to obtain judicial review of a final decision of
Defendant, the Commissioner of Social Security, denying Plaintiff’s
claim for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (the “Act”).
(See Docket Entry 1.)
The
Court has before it the certified administrative record (cited
herein as “Tr. __”) and the parties have filed cross-motions for
judgment (Docket Entries 12, 15). For the reasons that follow, the
Court should enter judgment for Defendant.
1
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).
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
December
13,
2003.
(Tr.
54-55,
67.)
After
denial
of
the
application, both initially (Tr. 30, 36-39) and on reconsideration
(Tr. 29, 32-34), Plaintiff requested a hearing de novo before an
Administrative
Law
Judge
(“ALJ”)
(Tr.
31).
Plaintiff,
his
attorney, and a vocational expert (“VE”) appeared at the hearing.
(Tr. 420-50.) The ALJ thereafter determined that Plaintiff was not
disabled within the meaning of the Act.
(Tr. 10-23.)
The Appeals
Council subsequently denied Plaintiff’s request for review, thereby
making the ALJ’s determination the Commissioner’s final decision
for purposes of judicial review.
In
rendering
this
(Tr. 5-8.)
disability
ruling,
the
ALJ
made
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2008.
2.
[Plaintiff] has not engaged in substantial gainful
activity since December 13, 2003, the alleged onset date
(20 CFR 404.1571 et seq.).
3.
[Plaintiff] has the following severe impairments:
Fibromyalgia; Osteoporosis; Irritable Bowel Syndrome;
Work-Related Injury to Left Shoulder (on alleged onset
date), Status Post Corrective Surgery; Minimal to Mild
Cervical Disk Disease; and Mild Coronary Atherosclerosis
(20 CFR 404.1521 et seq.).
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
2
the
any 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 [Plaintiff] has the residual
functional capacity to perform a full range of medium
work as defined in 20 CFR 404.1567(c). [Plaintiff] has
the ability to lift and carry 25 pounds frequently and 50
pounds occasionally; he has the ability to stand and walk
(with normal breaks) for at least 6 hours in an 8-hour
workday; he has the ability to sit (with normal breaks)
for at least 6 hours in an 8-hour workday; he should
avoid frequent ascending and descending stairs; he can
perform pushing and pulling motions with his upper and
lower extremities within the afore-mentioned weight
restrictions; he can perform the following postural
activities without restrictions: balancing, stooping,
kneeling, crouching or crawling; and he has no visual,
communicative, or environmental limitations. Further,
[Plaintiff] has retained the mental capacity to perform
either skilled or semi-skilled work activity on a
sustained basis.
(Tr. 15-20.)
In
light
functional
perform
of
the
capacity,
his
past
foregoing
the
ALJ
relevant
findings
determined
work
as
a
regarding
that
residual
Plaintiff
mechanic.
(Tr.
could
22.)
Alternatively, the ALJ adopted the VE’s opinion that Plaintiff’s
acquired job skills would transfer to three jobs at the light level
of exertion available in significant numbers in the national
economy.
(Id.)
Accordingly, the ALJ ruled that Plaintiff did not
have a “disability,” as defined in the Act, at any time from the
alleged onset date through the date of the decision.
3
(Tr. 22-23.)
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 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
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 brackets 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.”
993 F.2d at 34 (internal quotation marks omitted).
4
Hunter,
“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 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 that issue, 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. (quoting 42
U.S.C. § 423(d)(1)(A)).
“To regularize the adjudicative process,
5
the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical condition.”
Hall, 658 F.2d at 264.
“These regulations
establish a ‘sequential evaluation process’ to determine whether a
claimant is disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) 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
(4th Cir. 1999).2
A finding adverse to a claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For 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).
2
“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).
6
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 179.3
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform “past relevant
work” (“PRW”); if so, the claimant does not qualify as disabled.
Id. at 179-80.
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
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
3
“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 workrelated 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.
7
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
Assignments of Error
Plaintiff argues that the ALJ erred:
(1) by finding that
Plaintiff retained the RFC for a full range of medium work and
could perform his PRW (Docket Entry 13 at 3-6); (2) in assessing
the credibility of Plaintiff’s symptom reporting (id. at 6-7); and
(3) by failing to give controlling weight to an opinion of one of
Plaintiff’s treating physicians (id. at 7-8).
otherwise
and
urges
that
substantial
determination of no disability.
1.
Defendant contends
evidence
supports
the
(Docket Entry 16 at 2-20.)
RFC/PRW Findings
Plaintiff first assigns error to the ALJ’s conclusion that
Plaintiff had the RFC to do medium work, such that he could return
to his PRW as a mechanic.
(Docket Entry 13 at 3-6.)5
In
particular, Plaintiff contends the ALJ “misinterpreted” statements
by Drs. Jeffrey Beane, S. Scott Stewart, and Shaili Deveshwar,
4
A claimant thus can qualify as disabled via two paths through the SEP.
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 SEP 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.”).
5
“Medium work involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds. If someone can
do medium work, . . . he or she can also do sedentary and light work [which have
lower lifting limits].” 20 C.F.R. § 404.1567(c).
8
which actually supported restrictions of 35 pounds of lifting
generally and of no overhead lifting.
(Id.)
Plaintiff asserts
that the ALJ therefore erred by finding that Plaintiff could
perform medium work, including his PRW, because medium work (as
defined in 20 C.F.R. § 404.1567(c)) requires lifting more than 35
pounds and the position of mechanic, as defined in the Dictionary
of Occupational Titles (“DOT”), qualifies as medium work and
requires overhead lifting.
(Id. at 6.)6
These arguments provide
no grounds for reversal or remand.
The ALJ did misstate Dr. Beane’s opinion of Plaintiff’s
lifting ability, in that the ALJ described Dr. Beane as endorsing
a limit of 50 pounds (see Tr. 16), when he actually restricted
Plaintiff to 35 pounds of lifting (see Tr. 110).
However, this
misstatement, as well as all other material aspects of this
assignment of error (which concern Plaintiff’s alleged inability to
perform medium work, including his PRW), do not provide grounds for
relief because (based on the VE’s testimony) the ALJ alternatively
concluded Plaintiff could fill three light-exertion-level positions
(i.e., jobs requiring lifting of only ten pounds frequently and 20
pounds occasionally, 20 C.F.R. § 404.1567(b)), each of which
existed in significant numbers (Tr. 22).
6
Specifically, the VE
The DOT listing for “Automobile Mechanic” attached by Plaintiff as
Exhibit 1 to his brief does state that said job constitutes “Medium Work –
Exerting 20 to 50 pounds of force occasionally” (Docket Entry 13-1 at 1), but
does not appear to identify “overhead lifting” as a requirement (id. at 1-3).
9
testified that Plaintiff’s acquired job skills from his PRW as a
mechanic would transfer “fluidly” (without significant retraining
or vocational adjustment) to the light-exertion-level jobs of shop
estimator, automobile repair service estimator, and automobile
tester, as well as that, “[i]n the national economy, approximately
an average of 50,000 of those jobs would exist at the light level
of exertion.
[The] State of North Caroline [sic] would possess
approximately 7,000 of those types of jobs, and in the region of
Greensboro, High Point, Winston-Salem, or within 100 miles of
either of those three cities, between 300 and 400 of those types of
jobs would exist at the light level.”
(Tr. 447-48.)
Accordingly, even if the ALJ had credited Dr. Beane’s opinion
(and other parts of the record cited by Plaintiff in connection
with this assignment of error) to arrive at an RFC for Plaintiff
with a lifting limit of 35 pounds, resulting in a ruling at step
four that Plaintiff could not perform medium work (including his
PRW), substantial evidence nonetheless would support the ALJ’s
alternative conclusion at step five that a significant number of
light-exertion-level jobs existed that Plaintiff could do. See Lee
v. Sullivan, 988 F.2d 789, 794 (7th Cir. 1993) (documenting cases
establishing that state or local job totals below 1,400 and as low
as 174 supported “significant number” finding at step five); Hicks
v. Califano, 600 F.2d 1048, 1051 (4th Cir. 1979) (“Claimant
contends that the light and sedentary jobs described by the
10
vocational expert . . . do not exist in significant numbers within
the region.
We do not think that the approximately 110 jobs
testified to by the vocational expert constitute an insignificant
number.”);
Welch
v.
Barnhart,
No.
Civ.
02-247-P-C,
2003
WL
22466165, at *4 (D. Me. Oct. 31, 2003) (unpublished) (“I conclude,
particularly in the absence of evidence showing that the plaintiff
is unable to travel, that the existence of 350 or more jobs in the
region and more than 50,000 nationally is sufficient to meet the
‘significant number’ requirement.”), recommendation adopted, 2003
WL 22834930 (D. Me. Nov. 24, 2003) (unpublished).
Plaintiff’s
instant assignment of error thus affords no basis to disturb the
ALJ’s finding of no disability.
See generally Morgan v. Barnhart,
142 F. App’x 716, 723 (4th Cir. 2005) (“Any error the ALJ may have
made in rejecting Dr. Holford’s medical opinion . . . was therefore
harmless.”); Camp v. Massanari, 22 F. App’x 311, 311 (4th Cir.
2001) (applying harmless error standard in Social Security benefits
review context and refusing to remand absent showing of prejudice);
Cook v. Colvin, No. 1:11CV87, 2014 WL 317847, at *2 (M.D.N.C. Jan.
29, 2014) (unpublished) (Eagles, J.) (same, citing Camp and Fisher
v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)).
Notably, Plaintiff’s brief contains no argument contesting the
ALJ’s
finding
that
Plaintiff
could
perform
exertion-level jobs identified by the VE.
11
the
three
light-
(See Docket Entry 13.)
“Any issue not raised directly by Plaintiff is deemed waived.”
Greene v. Commissioner of Soc. Sec., No. 12-14434, 2013 WL 5676247,
at *4 n.2 (E.D. Mich. Oct. 18, 2013) (unpublished); accord Muncy v.
Colvin, No. CIV-12-361-F, 2013 WL 3062029, at *3 (W.D. Okla. May
16, 2013) (unpublished) (“This precise argument was not raised in
[the] [p]laintiff’s Opening Brief and should, therefore, be deemed
to be waived.”), recommendation adopted, 2013 WL 3058370 (W.D.
Okla. June 13, 2013) (unpublished); Thacker v. Commissioner of Soc.
Sec., No. 1:11CV613-LJO-BAM, 2012 WL 1978701, at *11 n.10 (E.D.
Cal. June 1, 2012) (unpublished) (“[B]ecause [the] [p]laintiff did
not raise this issue it [sic] her Opening Brief, this argument is
waived.”); Taylor v. Astrue, No. 5:09CV7RLV, 2012 WL 909506, at *4
(W.D.N.C. Mar. 16, 2012) (unpublished) (“[The] [p]laintiff waived
any
argument
not
raised
earlier
via
the
summary
judgment
briefing.”); Bollas v. Astrue, 694 F. Supp. 2d 978, 990 (N.D. Ill.
2010) (“Issues not raised in a claimant’s initial brief are
generally waived for purposes of review.”).
Moreover, at the hearing before the ALJ, Plaintiff failed to
mount any opposition (or even to attempt to develop any record
contrary) to the view that he retained the capacity to do the
above-referenced three light-exertion-level jobs, despite the fact
that he had the opportunity (through his attorney) to question the
VE about the requirements of those positions, including by posing
12
hypothetical questions about whether any purported restriction
(such as no overhead lifting)7 would render said jobs unavailable
to Plaintiff.
(See Tr. 449 (“ALJ: ‘Counsel, you may either modify
my hypothetical or you may pose a hypothetical of your own, ma’am.’
ATTY: ‘Thank you, Your Honor.
VE].’
I don’t have any questions for [the
ALJ: ‘Is there anything else you would like to put on the
record, ma’am?’
ATTY: ‘Nothing further, thank you.’”).)
As a result, Plaintiff waived, in this Court, any challenge to
the ALJ’s finding (based on the VE’s testimony) that Plaintiff
could perform those three types of jobs. See Howard v. Astrue, 330
F. App’x 128, 130 (9th Cir. 2009) (“The only limitation that
substantial evidence arguably supports and that the ALJ failed to
include in his hypothetical questions is depression.
However, as
noted above, [the plaintiff] waived any claim he may have had on
this issue.
[The plaintiff’s] attorney had two opportunities to
pose his own hypothetical questions to the VE, and he never
mentioned depression as a limitation.”); Hammond v. Chater, No. 963755, 116 F.3d 1480 (table), 1997 WL 338719, at *3 (6th Cir. June
18, 1997) (unpublished) (“[The] [p]laintiff also objects that the
jobs listed by the VE, and used by the ALJ to deny benefits, are
all at least semi-skilled, whereas the ALJ found her able to do
7
The DOT listings identified by the VE for the three jobs at issue (see
Tr. 447) do not appear to set out “overhead lifting” as a requirement, see DOT
§§ 379.364-010 (“Automobile Tester”), 620.261-018 (“Automobile-Repair-Service
Estimator”), and 807.267-010 (“Shop Estimator”) (4th ed. revised 1991).
13
only unskilled work.
[The] plaintiff waived this argument by
failing to raise it to the VE at the hearing.”); Helsper v. Colvin,
No. 12-0708(SRN/SER), 2013 WL 3974174, at *19 n.19 (D. Minn. July
30, 2013) (unpublished) (“The ALJ relied on the VE’s testimony
about those jobs in his findings at Step Five. [The plaintiff] did
not challenge the VE’s testimony as to those jobs and, therefore,
any
argument
related
to
them
is
waived.”
(internal
citation
omitted)); Campbell v. Commissioner of Soc. Sec., No. 11-14559,
2013 WL 823377, at *7 (E.D. Mich. Feb. 13, 2013) (unpublished)
(“[D]espite expressly being given the opportunity to question the
VE at the conclusion of the ALJ’s questioning, [the] plaintiff’s
counsel failed to make any further inquiries or challenges to her
testimony and thus waived any argument he may otherwise have had
regarding the exertional requirements of the occupations the VE
testified were available to [the] plaintiff.” (internal citation
omitted)), recommendation adopted, 2013 WL 822392 (E.D. Mich. Mar.
6, 2013); Stepinski v. Astrue, No. CA 11-183 ML, 2012 WL 3866678,
at *9-10 (D.R.I. Aug. 6, 2012) (unpublished) (“[The] [p]laintiff
complains that the ALJ did not ask the VE to consider the length of
his
bathroom
breaks
or
their
predictability.
.
.
.
[The]
[p]laintiff’s counsel questioned the VE regarding his testimony and
did not ask about this matter. . . .
The [c]ourt views unfavorably
the silence of [the] [p]laintiff’s counsel at the hearing regarding
14
the omission about which he now complains.
Reversal and remand
because of the omission about which [the] [p]laintiff now complains
would
encourage
circumstances.
incentive.
other
counsel
to
remain
silent
in
similar
This [c]ourt is disinclined to provide such an
Accordingly, the [c]ourt finds that [the] [p]laintiff
waived this issue by failing to raise it before the ALJ.” (internal
citations
omitted)),
recommendation
adopted,
2012
WL
3863812
(D.R.I. Sept. 5, 2012) (unpublished); see also Pleasant Valley
Hosp., Inc. v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994) (“As a
general matter, it is inappropriate for courts reviewing appeals of
agency decisions to consider arguments not raised before the
administrative agency involved.”); Meanel v. Apfel, 172 F.3d 1111,
1115 (9th Cir. 1999) (“[A]t least when claimants are represented by
counsel,
they
must
raise
all
issues
and
evidence
at
their
administrative hearings in order to preserve them on appeal.”).
In sum, even if the ALJ erroneously determined that Plaintiff
retained the RFC for medium work (and thus could return to his
PRW), the ALJ’s uncontested alternative finding as to the existence
of a significant number of light-exertion-level jobs that Plaintiff
could do forecloses any relief on this assignment of error.
2.
Symptom Credibility Analysis
In formulating Plaintiff’s RFC, the ALJ summarized Plaintiff’s
testimony about his impairments and related symptoms.
15
(Tr. 20.)
The
ALJ
then
found
that
Plaintiff’s
“medically
determinable
impairments could reasonably be expected to cause [his] alleged
symptoms; however, [his] statements concerning the intensity,
persistence and limiting effects of these symptoms [we]re not
credible to the extent they [we]re inconsistent with [an RFC]
assessment [of physical capacity to perform a full range of medium
work and mental capacity to perform sustained skilled or semiskilled work].”
(Tr. 21.)
The ALJ thereafter set forth reasons
for that finding with record citations. (Tr. 21-22.) According to
Plaintiff, “the ALJ’s assessment of [] Plaintiff’s credibility is
not supported by any of the evidence which [the ALJ] cited.”
(Docket Entry 13 at 7.)
This assignment of error falls short.
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”), 1996 WL 374186 (July 2, 1996), as applied by the
Fourth Circuit in Craig, 76 F.3d at 594-95, provides a two-part
test
for
evaluating
a
claimant’s
statements
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.’”
Id. at 594 (quoting 20 C.F.R. § 404.1529(b)).
16
Upon
satisfaction of part one by the claimant, the analysis proceeds to
part two, which requires an assessment of the intensity and
persistence of the claimant’s symptoms, as well as the extent to
which they affect his or her ability to work.
Id. at 595.
In
making that determination, 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).
In this case (as quoted above), the ALJ found for Plaintiff on
part one of the inquiry, but ruled, in connection with part two,
that
his statements about the degree of his symptoms lacked
credibility in so far as he claimed a level of physical impairment
that would prevent him from performing a full range of medium work
and/or a level of mental impairment that would preclude sustained
skilled or semi-skilled work.
(Tr. 21.)
In particular, after
discussing a variety of record materials, the ALJ ruled that “[t]he
longitudinal medical evidence of record does not support the
significant physical exertional limitations alleged by [Plaintiff].
[He] was not credible regarding the nature, severity and extent of
17
his alleged physical limitations, or his ongoing pain levels due to
his alleged fibromyalgia and other impairments.”
Plaintiff’s
specific
challenge
to
the
(Id.)
ALJ’s
credibility
analysis consists of these seven sentences:
[T]he ALJ said that [] Plaintiff showed full range of
motion in all joints and no synovitis, synovial
thickening, areas of warmth, swelling or effusions. (Tr.
21) These types of clinical signs are not usually
associated with Fibromyalgia. (See attached Exhibit 2)
The ALJ called the 18 out of 18 trigger point finding by
Dr. Devashwar [sic] “subjective” but this is one of the
diagnostic criteria associated with Fibromyalgia. The ALJ
went on to state that Dr. Bean [sic] said that []
Plaintiff could lift 50 pounds. (Tr. 21) As previously
pointed out Dr. Bean [sic] said [] Plaintiff should lift
no more than 35 pounds and should do no overhead lifting.
(Tr. 110) Neither Dr. Beane nor Dr. Stewart said that
pain management was unnecessary as claimed by the ALJ.
(Tr. 21) and Dr. Deveshwar’s statement regarding the
“good” control of [] Plaintiff’s symptoms was made on
only one occasion. (Tr. 384)
(Docket Entry 13 at 7.)8
As an initial matter, none of these arguments suggest the ALJ
erroneously discredited Plaintiff’s testimony regarding any mental
limitations.
This assignment of error thus does not implicate the
ALJ’s finding that Plaintiff had the mental capacity for sustained
skilled or semi-skilled work. Further, although Plaintiff’s abovequoted contentions do address the ALJ’s discounting of Plaintiff’s
description of his physical limitations, Plaintiff failed therein
to develop any argument that his testimony should have required the
8
The “Exhibit 2” cited by Plaintiff contains a print-out from the website
of the American College of Rheumatology about fibromyalgia. (Docket Entry 13-2.)
18
ALJ to conclude Plaintiff lacked the capacity to perform not only
medium work, but also light work (particularly the three jobs
identified by the VE, as discussed in the preceding subsection).
That failure warrants denial of relief.
See, e.g., Belk, Inc. v.
Meyer Corp., U.S., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (“This
issue is waived because [the plaintiff] fails to develop this
argument to any extent in its brief.”); 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)); Nickelson v.
Astrue, No. 1:07CV783, 2009 WL 2243626, at *2 n.1 (M.D.N.C. July
27, 2009) (unpublished) (“[A]s [the plaintiff] failed to develop
these arguments in his Brief, the court will not address them.”).
Nor do Plaintiff’s instant arguments even implicitly assert
that
his
testimony
conclusively
established
perform the light-exertion-level jobs at issue.
his
inability
to
For example, if
the ALJ properly had recognized that Dr. Beane advocated a 35-pound
lifting limit, at most that could have caused the ALJ to credit
Plaintiff’s testimony to a similar extent (i.e., to restrict
Plaintiff to 35 pounds of lifting). Such action would have weighed
against a finding that Plaintiff could do medium work, but not
light work (which, as previously noted, requires lifting less than
35 pounds).
Similarly, even if Drs. Beane and Stewart never
19
described pain management as unnecessary for Plaintiff and Dr.
Deveshwar only once referred to control of Plaintiff’s symptoms as
good, those facts would not have mandated that the ALJ rule
Plaintiff incapable of even light work based on his testimony.
In that regard, the ALJ’s decision confirms that, to explain
the
discrediting
(at
least
in
part)
of
Plaintiff’s
symptom
descriptions, the ALJ relied on a number of other aspects of the
medical record that called into question Plaintiff’s reporting.
(Compare Tr. 20 (noting that Plaintiff “testified at the hearing
that he had a bulging disk and spurs in his neck,” that his
fibromyalgia “caused weakness and pain in his muscles and joints
[and] . . . stabbing pain when he moved his joints,” “that he had
severe problems with his leg muscles [such] . . . that ascending
and descending stairs was difficult [and] . . . that he could not
squat,” that, after walking, he “became faint and had to sit down,”
that he felt instant pain when he lifted a gallon of liquid,” and
that “gastrointestinal problems [left him] . . . nauseated most
days,” with Tr. 21-22 (referring to Dr. Beane’s finding of limited
shoulder
impairment,
“physical
examinations
reveal[ing]
that
[Plaintiff] has a normal gait, and that he can walk on his heels
and toes,” testing showing that Plaintiff “demonstrated full motor
strength and normal sensation of his upper and lower extremities,”
“[a]n MRI of the cervical spine reveal[ing] ‘minimal to mild’
20
degenerative changes, and no herniated discs,” “[a] colonoscopy
reveal[ing] only mild gastritis and antritis,” the absence of “any
ongoing cardiovascular treatment,” and Dr. Stewart’s inability to
find “any etiology responsible for [Plaintiff’s] pain symptoms”).9
Finally,
Plaintiff
objects
to
the
ALJ
commenting
on
Plaintiff’s retention of unimpeded joint motion and his negative
results for various clinical signs (matters Plaintiff describes as
typical in fibromyalgia cases), as well as the ALJ referring to one
of Dr. Deveshwar’s findings as “subjective” (despite the fact that
it represents a valid diagnostic criterion for fibromyalgia).
(Docket Entry 13 at 7.)
Plaintiff, however, has not explained why
refraining from (accurately) noting his full range of motion or his
lack of “synovitis, synovial thickening, areas of warmth, swelling
or effusions” (Tr. 21) would have required the ALJ to fully credit
Plaintiff’s description of his symptoms or, more importantly, to
view that testimony as foreclosing a finding that he could do light
work.
(See Docket Entry 13 at 7.)
particular
test
serves
as
a
Moreover, the mere fact that a
recognized
means
for
diagnosing
fibromyalgia neither renders inaccurate the ALJ’s observation that
9
Although Plaintiff’s brief summarily declares that “the ALJ’s assessment
of [] Plaintiff’s credibility is not supported by any evidence which [the ALJ]
cited” (Docket Entry 13 at 7), Plaintiff’s brief fails to challenge any of these
elements of the ALJ’s credibility analysis (see id. at 6-7).
21
it requires subjective findings10 nor establishes that the ALJ
should have deemed Plaintiff’s testimony conclusive evidence of his
inability to do the light-exertion-level jobs identified by the VE.
Accordingly, Plaintiff has not shown that the ALJ’s evaluation
of Plaintiff’s credibility constituted reversible error.
3.
Treating Physician Opinion(s)
Plaintiff’s final assignment of error contests the ALJ’s
failure to afford controlling weight to the opinion(s) of one of
Plaintiff’s treating doctors, Dr. Richard Aronson.
(Docket Entry
13 at 7-8.) Regarding Plaintiff’s fibromyalgia, Dr. Aronson opined
that Plaintiff “had a thorough workup and multiple interventions,
but none ha[d] led to enough control of symptoms for him to resume
his occupation.
He is basically in pain on a daily basis, thus
making any type of work that demands any level of physical activity
impossible.”
(Tr. 336 (emphasis added).)
The ALJ did not err by
declining to give controlling weight to said opinion(s).
The
treating
source
rule
generally
requires
an
ALJ
to
attribute controlling weight to the opinion of a treating source as
to the nature and severity of a claimant’s impairment, on the
10
The Court should note that the ALJ did not dismiss or minimize
Plaintiff’s fibromyalgia as an impairment.
To the contrary, the ALJ found
Plaintiff’s fibromyalgia a severe impairment at step two (Tr. 15) and compared
his symptoms to Listing 14.06, Undifferentiated and Mixed Connective Tissue
Disease, 20 C.F.R., Pt. 404, Subpt. P, App’x 1, § 14.06, at step three (Tr. 19).
The ALJ then concluded that Plaintiff’s fibromyalgia did not meet or equal a
listing (id.), a ruling Plaintiff has not contested (see Docket Entry 13).
22
ground that treating sources “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(d)(2).11
The rule
also recognizes, however, that not all treating sources or treating
source opinions deserve such deference.
First, the nature and extent of each treatment relationship
may temper the weight afforded.
Further,
a
treating
source’s
20 C.F.R. § 404.1527(d)(2)(ii).
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). “[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.
Finally, opinions regarding
issues reserved to the Commissioner, regardless of source, do not
receive controlling weight.
See 20 C.F.R. § 404.1527(e).
Here, the ALJ evaluated Dr. Aronson’s opinion(s) as follows:
11
Effective March 26, 2012, a regulatory change recodified the treating
source rule as 20 C.F.R. § 404.1527(c)(2), 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 regulatory change, this
Recommendation uses the prior codification.
23
Dr. Aronson’s conclusion that [Plaintiff] is precluded
from working due to his fibromyalgia is out of proportion
with the remaining objective clinical medical evidence
contained in the record. The determination of whether a
claimant is capable of working is an issue reserved for
the Commissioner.
Although Dr. Aronson’s conclusions
were given appropriate consideration, his opinions are
not given controlling weight.
(Tr. 22 (internal citations omitted).)
In so doing, the ALJ
correctly concluded that Dr. Aronson’s opinion(s) that Plaintiff
could not “resume his occupation” (Tr. 336) and could not perform
“any type of work that demands any level of physical activity” (id.)
failed
to
addressed
warrant
matters
controlling
reserved
to
weight
the
because
said
Commissioner.
opinion(s)
See
Policy
Interpretation Ruling Titles II and XIV: Medical Source Opinions on
Issues Reserved to the Commissioner (“SSR 96-5p”), 1996 WL 374183,
at *5 (July 2, 1996) (“Medical sources often offer opinions about
whether an individual . . . is ‘disabled’ or ‘unable to work,’ or
. . . about an individual’s ability to do [PRW] or any other type
of work.
Because these are administrative findings that may
determine whether an individual is disabled, they are reserved to
the Commissioner . . . [and] can never be entitled to controlling
weight or given special significance.”).
Moreover, as found by the
ALJ (Tr. 22), substantial evidence of record conflicts with Dr.
Aronson’s opinion(s) (see Tr. 17-18, 111, 179, 181, 185, 299, 314-
24
21).
Under these circumstances, the ALJ did not err by declining
to give Dr. Aronson’s opinion(s) controlling weight.12
CONCLUSION
Plaintiff has not appealed the ALJ’s finding that a significant
number of light-exertion-level jobs exist that Plaintiff could
perform and thus his contention that the record fails to support the
ALJ’s alternative finding that Plaintiff could do a full range of
12
In connection with this final assignment of error, Plaintiff states that
“new medical evidence which was submitted to the Appeals Council shows a [RFC]
for sedentary work. Thus, Dr. Aronson’s opinion should be given controlling
weight.” (Docket Entry 13 at 8 (internal citation and footnote omitted).) As
an initial matter, although consistent with the view that Plaintiff could not
resume his PRW (which, as discussed above, qualified as medium work), evidence
that he could do sedentary work would not support Dr. Aronson’s opinion that
Plaintiff lacked the capacity for “any work that demands any level of physical
activity” (Tr. 336).
See 20 C.F.R. § 404.1567(a) (“Sedentary work involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. . . . [A] certain amount
of walking and standing is often necessary in carrying out job duties.”).
Further, according to Plaintiff, “[t]he new evidence consists of an FCE
[functional capacity evaluation] . . . not contained in the record.” (Docket
Entry 13 at 8 n.2; see also Docket Entry 13-3 (attaching as “Exhibit 3” six pages
of documents dated January 26, 2010, from physical therapy office, along with
letter dated March 16, 2010, from Plaintiff’s counsel to Appeals Council and
related facsimile confirmation sheet).) “[T]he Appeals Council is required to
consider new and material evidence relating to the period on or before the date
of the ALJ decision in deciding whether to grant review.” Wilkins v. Secretary,
Dep’t of Health & Human Servs., 953 F.2d 93, 95 (4th Cir. 1991) (emphasis added).
Here, the FCE in question post-dates the ALJ’s decision by nearly a year and the
physical therapist who performed the analysis stated that “[t]he efforts
demonstrated by [Plaintiff] on this date indicate a current work capacity
characterized by the Sedentary physical demand level for activity above the waist
and the Light physical demand level for activity below the waist.” (Docket Entry
13-3 at 4 (emphasis added).) The physical therapist thus clearly did not relate
his findings back to the period before the ALJ’s decision.
Accordingly,
Plaintiff’s new evidence provides a basis neither for this Court to invalidate
the ALJ’s rulings (including the denial of controlling weight to Dr. Aronson’s
opinion(s)), see, e.g., Turnbow v. Social Sec. Admin., 173 F. App’x 598, 599 (5th
Cir. 2006) (“[A] district court should review additional information that a
petitioner submits to the Appeals Council after the ALJ has reached a decision
. . . only if the new information relates to the time period for which the
benefits were sought.”), nor to order further administrative proceedings, see,
e.g., Edwards v. Astrue, No. 7:07cv00048, 2008 WL 474128, at *9 (W.D. Va. Feb.
20, 2008) (unpublished) (declining to remand where new evidence created over six
months after ALJ rendered decision did not address relevant time period).
25
medium work, including his PRW, affords no grounds for relief.
Nor
has Plaintiff shown reversible error in connection with the ALJ’s
analysis of Plaintiff’s testimony or Dr. Aronson’s opinion(s).
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment Reversing the Commissioner (Docket Entry 12) be denied,
that Defendant’s Motion for Judgment on the Pleadings (Docket Entry
15) be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 18, 2014
26
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