TURBERVILLE v. ASTRUE
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 4/23/2014, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 7 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 10 ) be granted, and that this action be dismissed with prejudice. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARY A. TURBERVILLE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
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1:11CV262
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Mary A. Turberville, brought this action pursuant
to Section 205(g) of the Social Security Act (“the Act”) 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 Act.
The Court
has before it the certified administrative record (cited herein as
“Tr. __”) and the parties have filed cross-motions for judgment
(Docket Entries 7, 10).
For the reasons that follow, the Court
should enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
July 29, 2006.
1
(Tr. 101-05.)
After denial of that application
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 (Tr. 48, 50-53) and on reconsideration (Tr. 49, 58-66),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 67).
appeared at the hearing.
Plaintiff and a vocational expert (“VE”)
(Tr. 20-47.)
The ALJ thereafter ruled
Plaintiff not disabled within the meaning of the Act.
(Tr. 9-19.)
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
disability
ruling,
(Tr. 1-5.)
the
ALJ
made
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2011.
2.
[Plaintiff] has not engaged in substantial gainful
activity since July 29, 2006, the alleged onset date (20
CFR 404.1571 et seq.).
3.
[Plaintiff] has the following severe impairments:
psoriasis, hypertension, controlled diabetes mellitus,
right knee arthritis, and anxiety and depression (20 CFR
404.1520(c)).
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
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 light work as defined in
20 CFR 404.1567(b) except [Plaintiff] would be limited to
non-complex, routine, repetitive tasks (i.e., unskilled
work) (decrease in the ability to concentrate on and
2
the
attend to work tasks and/or borderline intellectual
functioning (BIF)(SSR 71-84)[)]. [Plaintiff] would be
unable to work at a production rate involving piece work
(production=work stress).
(Tr. 14-17.)
In
light
of
the
findings
regarding
residual
functional
capacity (“RFC”) and the testimony of the VE, the ALJ determined
that Plaintiff could perform her past relevant work as a sales
attendant
as
actually
and
generally
performed.
(Tr.
18.)
Accordingly, the ALJ decided that Plaintiff had not suffered from
a “disability,” as defined in the Act, at any time from the alleged
onset date through the date of decision.
(Id.)
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).
3
“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.”
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).
4
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)).2
“To regularize the adjudicative process,
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
2
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . provides benefits to
indigent disabled persons. The statutory definitions and the regulations . . .
for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).
5
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).3
A finding adverse to the 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).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
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 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
6
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
Assignments of Error
Plaintiff argues that the ALJ erred in formulating the RFC
(and thus by resolving step four of the SEP against Plaintiff in
reliance
on
an
errant
RFC).
(Docket
Entry
8
at
3-6.)
Specifically, Plaintiff asserts that the ALJ improperly evaluated
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.
5
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.”).
7
(1) Plaintiff’s credibility as it relates to her reporting of
psoriasis
symptoms
(id.
at
3-5);
and
(2)
the
opinion
of
consultative examiner Bert A. Lucas, Ph.D. (id. at 5-6). Defendant
contends otherwise and urges that substantial evidence supports the
ALJ’s finding of no disability.
1.
(Docket Entry 11 at 3-8.)
Symptom Credibility Evaluation
According to Plaintiff, the ALJ incorrectly relied upon “the
absence of lesions on the palms of [Plaintiff’s] hands and soles of
[her] feet” and the lack of any restriction of motion or other
limitation of Plaintiff’s extremities in discounting her reporting
about the severity of her psoriasis.
(Docket Entry 8 at 4.)
Plaintiff maintains that the ALJ erred by requiring Plaintiff “to
produce objective evidence of the limiting effects of her painful
itchiness.”
(Id.)
That argument lacks merit.
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, 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)).
8
Upon
satisfaction of part one by the claimant, the analysis proceeds to
part two,
which
requires
an
evaluation of the
intensity and
persistence of the claimant’s symptoms, and the extent to which
such symptoms affect his or her ability to work.
Id. at 595.
In
making that evaluation, 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.
Id. (internal citations and quotation marks omitted).
Here, the ALJ found as to part one of the inquiry that
Plaintiff had impairments that reasonably could have produced the
alleged
symptoms.
(Tr.
17.)
At
part
two,
the
ALJ
deemed
Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of these symptoms not credible to the extent such
statements extended beyond the limitations set forth in the RFC.
(Id.)
In doing so, contrary to Plaintiff’s argument, the ALJ did
not discount Plaintiff’s credibility solely on the basis of the
lack of objective evidence of Plaintiff’s “painful itchiness.”
Rather, the ALJ considered all of the Craig factors, which include
“medical signs . . . [and] any objective medical evidence of pain
(such
as
evidence
of
reduced
joint
9
motion,
muscle
spasms,
deteriorating tissues, redness, etc.),” Craig, 76 F.3d at 595
(emphasis added), in reaching the part two conclusion.
For example, the ALJ discussed Plaintiff’s statements that she
stopped working because of psoriasis symptoms, that she constantly
itched and needed to shower two to three times per day, that she
had difficulty functioning on her psoriasis medication, and that
she became agitated and felt like “someone [wa]s sticking pins and
needles all over her.”
123.)
(Tr. 17; see also Tr. 30, 34, 116, 118,
The ALJ also considered the fact that no treating or
examining physician offered opinions with restrictions greater than
the limitations incorporated into the RFC. (Tr. 18.) Further, the
ALJ noted the statement of Plaintiff’s spouse that Plaintiff
recently enjoyed a gospel concert, that crowds did not bother her,
and that she could focus, shop, drive a car without getting lost,
and “go places with her daughter in law.”
(Id.)
Moreover,
although the ALJ did mention that Plaintiff’s psoriasis did not
affect her palms or soles, cause any limitation in her extremities,
or
restrict
conclusion
joint
from
motion
the
RFC
(Tr.
17-18),
analysis
of
the
state
ALJ
derived
agency
that
disability
examiner Larry Cook, whose analysis state agency physician Dr.
Elizabeth S. Hoyt affirmed (compare id., with Tr. 281, 285).
The
state agency examiner (and, by affirmation, the state agency
physician) clearly found the fact that Plaintiff’s psoriasis did
not impact her extremities or joints relevant and, thus, the ALJ
10
did not err by specifically discussing those findings as part of
her credibility analysis at part two.
In sum, the record reveals no reversible error arising from
the ALJ’s analysis of Plaintiff’s symptom reporting.
2.
Dr. Lucas
Next, Plaintiff contends that the ALJ improperly evaluated the
opinion of Dr. Lucas.
(Docket Entry 8 at 5-6.)
In particular,
Plaintiff maintains that the ALJ failed to explain how (or whether)
she considered Dr. Lucas’s opinion that Plaintiff “‘would have
difficulty tolerating the stress and pressures associated with dayto-day work activity at this time.’”
(Id. at 5 (quoting Tr. 169).)
Accordingly, Plaintiff asserts that the ALJ errantly substituted
“her own definition of work stress” by only imposing a restriction
against “work at a production rate involving piece work.”
6; see also Tr. 17.)
(Id. at
Plaintiff deems the ALJ’s “definition of work
stress” erroneous, because production-paced work “is not the only
cause of pressure and stress associated with day-to-day work
activity.”
(Docket Entry 8 at 6.)
Defendant’s response notes that the ALJ expressly discussed
Dr. Lucas’s opinion about “work stress” in the analysis at step two
of the SEP regarding the severity of Plaintiff’s impairments.
(Docket Entry 11 at 6; see also Tr. 15.)
Defendant further asserts
that the medical evidence as a whole and the opinions of the state
agency psychologists demonstrate that Plaintiff’s state of anxiety
11
during Dr. Lucas’s February 2007 examination did not represent
“Plaintiff’s routine mental condition” since her onset date and,
thus, that the ALJ correctly declined to fully credit Dr. Lucas’s
opinion.
(Docket Entry 11 at 5-6.)
In reply, Plaintiff asserts
that, because the ALJ did not expressly rely on the state agency
psychologists’ opinions in her decision, Defendant “should not be
permitted to rely upon them” in arguments to this Court.
Entry 12 at 3.)
(Docket
Plaintiff cites to Securities & Exch. Comm’n v.
Chenery Corp., 318 U.S. 80, 95 (1943) and Cunningham v. Harris, 658
F.2d 239, 244 n.3 (4th Cir. 1981), along with cases from other
Circuits,
to
argue
rationalization”
by
the
impermissibility
Defendant.
(Docket
of
such
Entry
12
“post
at
hoc
1-3.)
Plaintiff’s arguments fall short.
As an initial matter, the ALJ did indeed discuss Dr. Lucas’s
opinion during the step two analysis, remarking:
On February 7, 2007, Bert A. Lucas, Ph.D., administered
a comprehensive clinical psychological evaluation.
A
mental status examination reveals [Plaintiff] was
oriented by three with no evidence of loosening or
associations. She was neatly dressed and maintained good
eye contact. Her mood was mildly to moderately anxious
and her affect was shallow. She denied hallucinations
and suicidal ideation. However, related that she heard
a rhythmic chime in her ears at times. Her memory was
intact for both recent and remote events, as she was able
to provide an adequate review of her developmental,
school, work, and medical history, as well as involvement
in recent events.
Dr. Lucas stated that based on a
mental status evaluation, [Plaintiff] was able to
understand, retain and follow instructions, sustain
attention, and perform simple, routine, repetitive tasks.
However, due to her symptoms of anxiety, she had
12
difficulty concentrating and focusing. She was able to
relate with others but not under stressful conditions.
As a result, she would have difficulty tolerating the
stress and pressures associated with day-[to-]day work
activity. Diagnosis included depressive disorder, NOS
and a global assessment of functioning (GAF) rated at 55,
which indicates only moderate[] symptoms, such as
occasional panic attacks.
(Tr. 15 (emphasis added) (citation omitted).)
The ALJ’s thorough
discussion at step two of Dr. Lucas’s evaluation, including the
specific opinion at issue, clearly suffices to establish that the
ALJ properly considered that opinion.
01-1439,
2002
WL
191573,
at
*1
See McCartney v. Apfel, No.
(4th
Cir.
Feb.
7,
2002)
(unpublished) (noting “that the ALJ need only review medical
evidence once in his decision”); Kiernan v. Astrue, No. 3:12CV459HEH, 2013 WL 2323125, at *5 (E.D. Va. May 28, 2013) (unpublished)
(observing that “[w]here the ALJ analyzes a claimant’s medical
evidence in one part of his decision, there is no requirement that
he rehash that discussion in [a later] analysis”).
Moreover, Dr. Lucas’s observation that Plaintiff would have
“difficulty” tolerating stress in the workplace does not equate to
an opinion that Plaintiff reasonably could not do so.
See Watkins
v. Astrue, No. 1:09CV741, 2011 WL 2791267, at *4 (M.D.N.C. Jul. 14,
2011) (Sharp, M.J.) (unpublished) (noting that doctor’s opinion
that claimant would have “some difficulty” attending school did not
equate to inability), recommendation adopted, slip op. (M.D.N.C.
Sept. 26, 2011) (Eagles, J.).
Here, the ALJ adequately accounted
13
for Plaintiff’s alleged difficulty tolerating stress by formulating
an RFC which precluded the stress of production work involving
piece rates.
(Tr. 17.)
Further, to the extent “difficulty” tolerating stress suggests
an “inability” to tolerate stress, the ALJ had no obligation to
attribute decisive weight to that aspect of Dr. Lucas’s opinion.
Unlike with treating sources, the opinions of consulting examiners
such as Dr. Lucas do not, as a general proposition, qualify for
controlling weight under the Commissioner’s regulations.
C.F.R. § 404.1527(d)(2).6
See 20
Further, application of the relevant
factors, see 20 C.F.R. § 414.1527(d), did not compel the ALJ to
attribute decisive weight to Dr. Lucas’s consultative opinion.
To the contrary, as the ALJ noted, just a few days after Dr.
Lucas’s evaluation, another consultative examiner, Dr. William L.
Bell,
found
Plaintiff’s
affect
normal,
psychosis or mental status change.
with
no
evidence
of
(Tr. 15; see also Tr. 173.)
The ALJ also correctly observed that Plaintiff had not sought “any
mental health intervention in the past” (Tr. 18), “adamantly
refused therapy” when offered by a treating physician (Tr. 15; see
also Tr. 288), and enjoyed activities of daily living inconsistent
6
Effective March 26, 2012, a regulatory change re-codified the treating
physician rule as 20 C.F.R. § 404.1527(c)(2), but did not impact the substantive
language of the rule. See 77 Fed. Reg. 10651–10657 (Feb. 23, 2012). Given that
all material events in this action precede this non-substantive re-codification,
the undersigned Magistrate Judge will use the pre-March 26, 2012 citations when
referencing the treating physician rule.
14
with disabling depression and anxiety, such as driving, shopping,
attending concerts and visiting with family (Tr. 18). Finally, the
ALJ discussed medical reports from November 2008 which indicated
that Plaintiff “was doing better,” felt her “medications were
helpful,” and displayed “a happy and alert affect.”
also Tr. 287-88.)
(Tr. 15; see
Under these circumstances, the ALJ’s preclusion
of production-paced work properly accounted for any stress-related
limitations, including as reflected by Dr. Lucas’s opinion.
Given the foregoing considerations, the ALJ’s handling of Dr.
Lucas’s opinion does not warrant relief.7
CONCLUSION
Plaintiff’s assignments of error lack merit.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 7) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 10) be granted,
and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 23, 2014
7
In reaching this conclusion, the undersigned Magistrate Judge did not
rely on opinions regarding Plaintiff’s mental RFC not expressly considered by the
ALJ. As such, no need exists to address Plaintiff’s argument that Defendant’s
reliance on such opinions in her brief constituted impermissible “post hoc
rationalization” (Docket Entry 12 at 3).
15
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