CAMPBELL, JR. v. ASTRUE
Filing
15
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 06/23/2014, that Plaintiff's Motion for Judgment Reversing the Commissioner (Doc. 10 ) is DENIED, that Defendant's Motion for Judgment on the Plea dings (Doc. 12 ) is GRANTED, that the final decision of the Commissioner is upheld, and that this action is dismissed with prejudice. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ADAM CAMPBELL, JR.,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
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1:11CV327
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
I.
BACKGROUND
Plaintiff, Adam Campbell, Jr., protectively filed an
application for a period of Disability and Disability Insurance
Benefits on May 30, 2007, alleging a disability onset date of
February 8, 2006.
(Tr. 13, 142-48.)
and upon reconsideration.
It was denied initially
(Id. at 79-82, 93-100.)
After a
hearing, the administrative law judge (ALJ) determined that
Plaintiff was not disabled under the Social Security Act (“the
Act”).
1
(Id. at 13-23.)
The ALJ applied the five-step test (20
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.
No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
C.F.R. § 404.1520(a)(4)) and found in step 2 that Plaintiff had
the following severe impairments: status post-surgical
decompression for left rotator cuff injury with residual chronic
pain syndrome, diabetes, and bursitis.
(Id. at 15.)
At step 3,
the ALJ found that Plaintiff did not have a listed impairment.
(Id. at 15-16.)
The ALJ next concluded that Plaintiff had the
Residual Functional Capacity (“RFC”) to perform light work in
that he could lift and carry up to 20 pounds occasionally and 10
pounds frequently with his right upper extremity, stand and walk
for about 6 hours in an 8-hour workday, and sit for about 6
hours in an 8-hour workday.
(Id. at 16-22.)
Plaintiff also
retained the RFC to perform sedentary work. (Id.)
Plaintiff
required a sit/stand option, could not lift more than 5 pounds
with his left upper extremity, was prohibited from repetitive
overhead activities with his left upper extremities, had a
limited capacity for handwriting, and could not perform jobs
with a significant need for handwriting.
(Id.)
At step 4, the
ALJ found that Plaintiff could not return to his past relevant
work.
(Id. at 22.)
Last, the ALJ concluded that there were
jobs that Plaintiff could perform and so he was not disabled.
(Id. at 22-23.)
review.
The Appeals Council denied a request for
(Id. at 1-4.)
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II.
ANALYSIS
Plaintiff contends that the ALJ failed to state what
weight, if any, he gave the medical opinions of Dr. Kevin P.
Speer and Dr. Leo Thomas Barber.
(Pl.’s Mem. in Supp. of Mot.
for J. Reversing or Modifying Decision of Comm’r (“Pl.’s Mem.”)
(Doc. 11) at 2-6.)
Plaintiff also contends that the ALJ erred
at step 5 because his hypothetical to the vocational expert
(“VE”) did not include a sit/stand option or mention the
frequency of the sit/stand option.
A.
(Id. at 6-10.)
Any Error in Weighing the Opinions of Drs. Speer and
Barber is Harmless
Plaintiff contends that the ALJ failed to state what
weight, if any, he afforded the medical opinions of Drs. Speer
and Barber.
(Pl.’s Mem. (Doc. 11) at 2-6.)
The “treating
physician rule,”2 20 C.F.R. § 404.1527(d)(2), generally provides
more weight to the opinion of a treating source, because it may
“provide a detailed, longitudinal picture of [the claimant’s]
medical impairment(s) [which] may bring a unique perspective to
the medical evidence.”
20 C.F.R. § 404.1527(d)(2).
2
But not all
Effective March 26, 2012, after this proceeding was
initiated, a regulatory change renumbered, but did not impact
the substance of the treating physician rule. 77 Fed. Reg.
10651-10657 (Feb. 23, 2012). Because of its filing date, this
Recommendation uses the pre-March 26, 2012 citations.
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treating sources are weighed equally.
An ALJ refusing to accord
controlling weight to the medical opinion of a treating
physician must consider various “factors” to determine how much
weight to give it.
20 C.F.R. § 404.1527(d)(2)-(6).
These
factors include: (i) the frequency of examination and the
length, nature and extent of the treatment relationship; (ii)
the evidence in support of the treating physician’s opinion;
(iii) the consistency of the opinion with the record as a whole;
(iv) whether the opinion is from a specialist; and (v) other
factors that tend to support or contradict the opinion.
Id.
A
treating source’s opinion, like all medical opinions, must be
both well-supported by medical signs and laboratory findings and
consistent with the other substantial evidence in the case
record.
20 C.F.R. § 404.1527(d)(2)-(4); Craig v. Chater, 76
F.3d 585, 590 (4th Cir. 1996); accord Mastro v. Apfel, 270 F.3d
171, 178 (4th Cir. 2001).
Opinions by physicians regarding the
ultimate issue of whether a plaintiff is disabled within the
meaning of the Act never receive controlling weight because the
decision on that issue remains for the Commissioner alone.
C.F.R. § 404.1527(e).
20
Here, Plaintiff contends that the ALJ
violated 20 C.F.R. § 404.1527(d)(2), which requires “good
reasons in [the] notice of determination or decision for the
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weight we give [a] treating source’s opinion.”
20 C.F.R. §
404.1527(d)(2); see also Social Security Ruling 96-2p, Policy
Interpretation Ruling Titles II and XVI: Giving Controlling
Weight to Treating Source Medical Opinions, 1996 WL 374188 (“SSR
96-2p”).
Dr. Kevin Speer (Plaintiff’s Treating Orthopedic Surgeon)
The ALJ discussed Dr. Speer’s medical opinion at length
(Tr. 19) and then decided not to “give [it] controlling weight
because it [was] not consistent with the medical records as a
whole.”
(Tr. 21.)
Plaintiff faults the ALJ for not explaining
further what weight Dr. Speer’s opinions received.
It can only
be assumed, Plaintiff continues, “that the ALJ gave no weight to
those opinions and therefore has violated 20 C.F.R.
§§ 404.1527(d)(2) [and] SSR 96-2p.”
2.)
(Pl.’s Mem. (Doc. 11) at
However, as Defendant points out, Dr. Speer’s opinions are
almost entirely consistent with the RFC the ALJ ultimately did
adopt.
(Def.’s Mem. in Supp. of Comm’r’s Mot. for J. on the
Pleadings (“Def.’s Mem.”) (Doc. 13) at 5-6.)
The only
differences in Dr. Speer’s opinions and the ALJ’s RFC are
accounted for by Plaintiff’s own testimony, which the ALJ
recited and relied upon in his decision.
(Tr. 21.)
Thus, any
error here is ultimately harmless, because the alleged error
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clearly had no bearing on the procedure used or the substance of
the decision reached.
See Morgan v. Barnhart, 142 Fed. Appx.
716, 722-23 (4th Cir. 2005) (holding that reversal not required
upon error in assessing treating physician’s opinion where error
clearly has no bearing on the proceeding).3
Specifically, Plaintiff injured his left shoulder on
February 8, 2006.
(Tr. 200.)
September 25, 2006.
Dr. Speer operated on it on
(Id. at 300-01.)
On December 14, 2006,
Dr. Speer reported that Plaintiff could go back to work as a
janitor on January 2, 2007.
(Id. at 311.)
Dr. Speer later gave
Plaintiff a 15% disability rating and restricted Plaintiff to 10
pounds lifting and no repetitive overhead activities, which he
later changed to 5 pounds lifting and no repetitive overhead
activities.
(Id. at 283, 322.)
Plaintiff clarified Dr. Speer’s
restriction at his hearing, testifying that the lifting
restriction was strictly for his left upper extremity.
46.)
(Id. at
Plaintiff also testified that he could pick up a gallon of
water with his right hand, weighing 8 pounds, every 15 minutes
during an 8-hour workday.
(Id. at 57-58.)
Dr. Speer’s
restrictions and Plaintiff’s testimony are consistent with the
3
See, e.g., Caldwell v. Barnhart, 261 Fed. Appx. 188, 191
(11th Cir. 2008); Heston v. Comm'r of Soc. Sec., 245 F.3d 528,
535-36 (6th Cir. 2001).
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ALJ’s RFC determination for light work that includes lifting
with the left upper extremity up to 5 pounds with no repetitive
overhead activities and a limited capacity for handwriting.
(Id. at 16-22.)
The ALJ did not reject Dr. Speer’s opinions; he
credited them in his RFC, except perhaps insofar as Plaintiff’s
testimony limited certain restrictions to his left upper
extremity.
Plaintiff does not address Dr. Speer’s medical records,
assert what additional limitations (if any) the ALJ should have
considered, or explain why any error here is prejudicial.
Plaintiff implies that any error in attributing a degree of
weight to a treating physician is per se reversible error,
citing Dean v. Astrue, Civil No. 3:08-CV-563-GCM-DCK, 2010 WL
5589358 (W.D.N.C. Dec. 22, 2010).
4-5.)
(See Pl.’s Mem. (Doc. 11) at
Dean did result in a remand upon the ALJ’s failure to
explain the weight given to doctors’ opinions.
2010 WL 5589358.
was harmless.
Dean v. Astrue,
Yet, the court did not consider if this error
Id. at *5.
issues absent here.
Dean was also remanded on other
Id. at *6. Finally, this court finds the
analysis in Morgan v. Barnhart, supra, persuasive on these
facts. As explained, any error here is harmless.
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Dr. Leo Thomas Barber (Treating Family Physician)
Nor, for similar reasons, did the ALJ commit reversible
error as to Dr. Barber.
While the ALJ did not attribute a
particular degree of weight to Dr. Barber’s opinions, the ALJ
acknowledged Dr. Barber a number of times in his decision and
discussed his treatment of Plaintiff at some length.
21.)
(Tr. 19-
The ALJ therefore clearly took into consideration the
contents of Dr. Barber’s treatment notes in concluding that
Plaintiff could perform a limited range of light work.
And,
nowhere in his brief does Plaintiff address the content of
Dr. Barber’s opinions, assert what additional limitations (if
any) the ALJ should have incorporated into his RFC, or make a
case as to why any error here is prejudicial.
Upon review, it
is also apparent that Dr. Barber’s medical records are
consistent with the ALJ’s RFC.
(Tr. 372-420.)
It is true that the ALJ did not discuss a one-page letter
Dr. Barber wrote on Plaintiff’s behalf.
(Id. at 488.)
It
states that Plaintiff’s symptoms “restrict[ed] his ability to
lift and hold objects and as a result he has been unable to hold
a job since his injury” and that “[b]ecause of limited education
and job skills, work for which [Plaintiff] is qualified
generally requires significant physical exertion.
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It is
unlikely he will ever improve sufficiently to sustain
employment.
In my judgment he is permanently disabled.”4
(Id.)
Yet, there appears to be a reason why this letter was never
addressed by the ALJ.
It was not in the record.
More specifically, at the end of the hearing, the ALJ
agreed to keep the record open for an additional two weeks
beyond the August 6, 2009 hearing date, and stated that “[a]t
the end of two weeks, I’ll proceed to make my decision . . . .”
(Id. at 75.)
Plaintiff’s attorney did not submit the
above-mentioned letter from Dr. Barber to the ALJ within the
two-week period (August 7, 2009 through August 21, 2009) set
forth by the ALJ.
The letter is dated September 10, 2009, weeks
after the record was closed.
(Id. at 488.)
Nor does the record
indicate whether the letter was submitted to the ALJ prior to
issuance of his September 15, 2009 decision.
Plaintiff’s
counsel later submitted the letter to the Appeals Council, along
with an appellate brief, and indicated that the letter “was
submitted via Electronic Records Express subsequent to the
hearing but was not included in the record.”
4
(Id. at 184.)
The
This court notes that, as discussed in Morgan v. Barnhart,
142 Fed. Appx. at 721-22, the Code of Federal Regulations
“draws a distinction between a physician’s medical opinions and
his legal conclusions.” Legal conclusions such as whether a
claimant is disabled or unable to work are not entitled to
heightened evidentiary value.
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Appeals Council then designated the letter as “additional
evidence” and made it “part of the record.”
(Tr. 5.)
It
concluded that “this information does not provide a basis for
changing the [ALJ’s] decision.”
(Id. at 2.)
Because the letter
was not in the record until Plaintiff was before the Appeals
Council, its absence from the ALJ’s decision is not error.
(Tr.
13-23.)
Even if the letter were before the ALJ, any error is
harmless.
Most, perhaps all, of the letter does not constitute
a medical opinion, because it opines on issues reserved for the
ALJ.
The only part of the letter that might be a medical
opinion — Dr. Barber’s statement that Plaintiff is unable to
perform “significant physical exertion” — is consistent with the
ALJ’s conclusion that Plaintiff can perform a restricted range
of light work.
(Id. at 488.)
And, as noted, Dr. Barber’s
treatment notes are consistent with the ALJ’s RFC determination.
Last, Plaintiff objects to the ALJ’s reference to Social
Security Ruling 96-5p, Policy Interpretation Ruling Titles II
and XVI: Medical Source Opinions on Issues Reserved to the
Commissioner, 1996 WL 374183 (“SSR 96-5p”).
(Pl.’s Mem. (Doc.
11) at 5 (quoting Tr. 21-22) (“[T]reating source opinions on
issues . . . reserved to the Commissioner are never entitled to
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controlling weight or special significance, and that the issue
of meeting the requirements of a listing is still . . . reserved
to the Commissioner.
Giving controlling weight to such opinions
would, in effect, confer upon the treating source the authority
to make the determination . . . about whether an individual is
under a disability, and thus would be an abdication of the
Commissioner’s statutory responsibility . . . .”).)
Plaintiff
contends that reference to SSR 96-5p is error because it is not
clear what treating source opinion, if any, the ALJ is
referencing.
However, the ALJ’s quote is an accurate—almost
verbatim—articulation of SSR 96-5p.
The insertion of an
accurate recitation of law in the ALJ’s decision is not error.
This court finds that Plaintiff has not established
prejudicial error as to the ALJ’s discussion of Drs. Speer and
Barber; any error is harmless on these facts.
B.
The ALJ’s Sit/Stand Restriction is Supported by
Substantial Evidence
Plaintiff next faults the ALJ for not including a sit/stand
option in a hypothetical to the VE.
6-10.)
Hypotheticals must account for all a claimant’s
limitations.
1989).
(Pl.’s Mem. (Doc. 11) at
Walker v. Bowen, 889 F.2d 47, 50-51 (4th Cir.
Here, the ALJ did not include a sit/stand limitation in
a hypothetical to the VE.
Rather, he asked the VE if one could
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work if limited to light work, could lift only 5 pounds with his
left upper extremity, could not engage in overhead activities
with his left upper extremity, had limited handwriting ability,
and could not manage a significant need for handwriting.
69.)
(Tr.
The VE replied that such an individual could perform
light, unskilled work as a parking lot attendant, a cashier, and
gate guard.
(Tr. 69-70.)
However, in response, the VE also
testified that these jobs offered a sit/stand option.
70.)
(Id. at
The VE’s answer included a sit/stand option, thus, any
error in the ALJ’s hypothetical is harmless.
See, e.g., Henley
v. Astrue, No. 3:11-CV-488, 2012 WL 2804846, at *4 (W.D.N.C.
July 10, 2012).
Plaintiff next faults the ALJ for failing to specify in the
RFC assessment the frequency with which Plaintiff needs to sit
and stand.
(Pl.’s Mem. (Doc. 11) at 8.)
Plaintiff notes that
Social Security Ruling 83-12, Titles II and XVI: Capability to
do Other Work—The Medical-Vocational Rules as a Framework for
Evaluating Exertional Limitations within a Range of Work or
Between Ranges of Work, 1983 WL 31253 (“SSR 83-12”) provides
“[u]nskilled types of jobs are particularly structured so that a
person cannot ordinarily sit or stand at will.
In cases of
unusual limitation of ability to sit or stand, a VS [vocational
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specialist] should be consulted to clarify the implications for
the occupational base.”
SSR 83-12.
Plaintiff also cites SSR
96-9p, which provides that “[t]he RFC assessment must be
specific as to the frequency of the individual’s need to
alternate sitting and standing.”
SSR 96-9p.
Because it is not
known what frequency of the sit/stand option the VE used when
responding to the ALJ’s hypothetical question, Plaintiff
contends, the ALJ erred at step 5.
Defendant contends any error is harmless.
(Doc. 13) at 8-9.)
This court agrees.
(Def.’s Mem.
First, the ALJ complied
with SSR 83-12 by obtaining expert testimony about three jobs a
claimant with limitations like those of the Plaintiff could
perform and the expert stated “these jobs . . . do offer a
sit/stand option . . . .”
(Tr. 70, 66-75.)
As for SSR 96-9p,
it addresses claimants capable of performing only sedentary
work.
See SSR 96-9p.
limited light work.
The ALJ determined Plaintiff could do
(Tr. 457.)
SSR 96-9p is on its face
inapplicable.
Second, where an ALJ fails to specify the frequency of
alteration in a sit/stand option, the reasonable implication is
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that the claimant can sit or stand at his own volition.5
Though
the ALJ here failed to specify in a hypothetical to the VE the
frequency of alteration in a hypothetical sit/stand option — and
the VE never testified as to the frequency — case law suggests
it was implicit that the claimant should be able to sit or stand
at-will.
Thus, the ALJ’s hypothetical, the VE’s testimony, and
the ALJ’s decision are not fatally vague or deficient.
Third, the cases Plaintiff cites are inapposite.
Armer v.
Apfel and Castrejon v. Apfel involve unskilled sedentary work
with a sit/stand limitation, which falls within the parameters
of SSR 96–9p, unlike this case, which does not.
Nos. 99-7128,
98-CV-424-S, 2000 WL 743680, at *2-3 (10th Cir. June 9, 2000)
(unpublished); 131 F. Supp. 2d 1053, 1057 (E.D. Wis. 2001).
Vail v. Barnhart is not a reversal based solely upon the ALJ’s
failure to specify a frequency for the claimant’s sit/stand
limitation, but upon other errors as well.
No. 02–5061, 2003 WL
22810457, at *6 (10th Cir. Nov. 26, 2003) (unpublished).
5
See, e.g., Williams v. Barnhart, 140 Fed. Appx. 932, 93637 (11th Cir. 2005); Wright v. Astrue, No. 1:09CV0003, 2012 WL
182167, at *8 (M.D.N.C. Jan. 23, 2012) (unpublished); Vallejo v.
Astrue, Civil No. 3:10-CV-00445-GCM-DCK, 2011 WL 4595259, at
*8-10 (W.D.N.C. Aug. 4, 2011) (unpublished); Smith v. Astrue,
No. 5:09cv158/RS/EMT, 2010 WL 3749209, at *19 n.26 (N.D. Fla.
Aug. 25, 2010) (unpublished).
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Finally, Plaintiff has not pointed to any evidence or
explained why he cannot perform the jobs identified by the VE
based upon his ability to sit or stand, and Plaintiff’s counsel
did not question the VE during the hearing on the frequency
issue.
See Ruff v. Colvin, No. 1:12–cv–165-RJC, 2013 WL
4487502, at *8 (W.D.N.C. Aug. 20, 2013).
Plaintiff’s argument
is weak.
III. CONCLUSION
For the reasons set forth herein, IT IS ORDERED that
Plaintiff’s Motion for Judgment Reversing the Commissioner (Doc.
10) is DENIED, that Defendant’s Motion for Judgment on the
Pleadings (Doc. 12) is GRANTED, that the final decision of the
Commissioner is upheld, and that this action is dismissed with
prejudice.
A judgment consistent with this Memorandum Opinion
and Order will be entered contemporaneously herewith.
This the 23rd day of June, 2014.
_______________________________________
United States District Judge
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