DUVALL v. ASTRUE
Filing
22
MEMORANDUM OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 4/29/2015, that Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner or Remanding the Cause for a Rehearing (Doc. 11 ) is DEN IED, that the Commissioner's Motion for Judgment on the Pleadings (Doc. 17 ) is GRANTED, and that this case is DISMISSED WITH PREJUDICE. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TONYA TOLBERT DUVALL,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social
Security,
Defendant.
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1:12CV1144
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Tonya Tolbert Duvall (“Plaintiff”) brought this
action pursuant to Section 205(g) of the Social Security Act
(the “Act”), codified as amended at 42 U.S.C. § 405(g), to
obtain judicial review of a final decision of the Commissioner
of Social Security (“Commissioner”), denying Plaintiff’s claim
for Disability Insurance Benefits (“DIB”) under Title II of the
Act.
1
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).
Plaintiff subsequently filed a Motion for Judgment
Reversing or Modifying the Decision of the Commissioner or
Remanding the Cause for a Rehearing (Doc. 11), and the
Commissioner has filed a Motion for Judgment on the Pleadings
(Doc. 17).
Additionally, the administrative record has been
certified to this court for review.2
For the reasons set forth below, the Commissioner’s motion
will be granted, Plaintiff’s motion to reverse the decision of
the Commissioner and request for remand will be denied, and the
case will be dismissed.
I.
BACKGROUND
Plaintiff filed an application for disability insurance
benefits on December 18, 2008, alleging a disability beginning
on January 17, 2006. (Tr. at 11.)
The claim was denied
initially on May 5, 2009, and upon reconsideration on August 7,
2009. (Id.) A hearing was held before an Administrative Law
Judge (“ALJ”) on January 6, 2011, and in a decision dated
March 9, 2011, the ALJ denied Plaintiff’s application. (Id. at
11-20.)
In making this determination, the ALJ found that Plaintiff
had the following severe impairment: reactive airway disease.
2
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer. (Doc. 9.)
(Id. at 13.) The ALJ also found that Plaintiff’s impairments,
alone or in combination, did not meet or equal a listing
impairment. (Id. at 15.) The ALJ determined that Plaintiff had
the Residual Functional Capacity (“RFC”) to perform medium work
and is limited to moderate exposure to respiratory irritants
such as fumes, odors, gases, and dirt. (Id.)
The ALJ then determined that Plaintiff was capable of
performing her past relevant work as a cashier II and as a
companion. (Id. at 18.) In addition to the ability to perform
past relevant work, considering Plaintiff’s age, education, work
experience and RFC, there were also other jobs that existed in
significant numbers in the national economy that Plaintiff was
able to perform, including vault worker, mail carrier (rural),
chiropractor assistant, recreation facility attendant,
information clerk, and router, delivery marker. (Id. at 19.)
Thus, the ALJ concluded that Plaintiff was not disabled under
the framework of Medical-Vocational Rule 203.30. (Id. at 19-20.)
On August 30, 2012, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision a final decision.
(Id. at 1-3.) Plaintiff filed the present action on October 26,
2012.
II.
LEGAL STANDARD
Federal law authorizes judicial review of Commissioner’s
denial of social security benefits. 42 U.S.C. § 405(g); Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
However, the scope
of review of such a decision is “extremely limited.”
Harris, 646 F.2d 143, 144 (4th Cir. 1981).
to try the case de novo.”
(4th Cir. 1974).
Frady v.
“The courts are not
Oppenheim v. Finch, 495 F.2d 396, 397
Instead, “a 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.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012) (internal quotation 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.
1993) (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 citations and quotation
marks omitted).
“If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
substantial evidence.”
Hunter, 993 F.2d at 34 (internal
quotation marks omitted).
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“In reviewing for substantial evidence, the court should
not undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
[ALJ].”
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 ALJ.”
Hancock, 667 F.3d at 472.
In undertaking this limited review, the Court notes that
“[a] claimant for disability benefits bears the burden of
proving a disability.”
Cir. 1981).
Hall v. Harris, 658 F.2d 260, 264 (4th
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
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expected to last for a continuous period of not less than 12
months.’”
Id. (quoting 42 U.S.C. § 423(d)(1)(A)).3
“The Commissioner uses a five-step process to evaluate
disability claims.”
Hancock, 667 F.3d at 472 (citing 20 C.F.R.
§§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked
during the alleged period of disability; (2) had a severe
impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her
past relevant work; and (5) if not, could perform any other work
in the national economy.”
3
Id.
As set out in Craig:
The Social Security Act comprises two disability
benefits programs. The Social Security Disability
Insurance Program (SSDI), established by Title II of
the Act as amended, 42 U.S.C. § 401 et seq., provides
benefits to disabled persons who have contributed to
the program while employed. The Supplemental Security
Income Program (SSI), established by Title XVI of the
Act as amended, 42 U.S.C. § 1381 et seq., provides
benefits to indigent disabled persons. The statutory
definitions and the regulations promulgated by the
Secretary for determining disability, see 20 C.F.R.
pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing
these two programs are, in all aspects relevant here,
substantively identical.
Craig v. Chater, 76 F.3d 585, 589 n.1 (4th Cir. 1996).
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A finding adverse to the claimant at any of several points
in this five-step sequence forecloses a disability designation
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 the first two steps, and if the claimant’s impairment meets
or equals a “listed impairment” at step three, “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,” then “the ALJ must
assess the claimant’s residual functional capacity (‘RFC’).”
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Id. at 179.4
Step four then requires the ALJ to assess whether,
based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant 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,
which “requires the [Government] to prove that a significant
number of jobs exist which the claimant could perform, despite
the claimant’s impairments.”
Hines, 453 F.3d at 563.
In making
this determination, 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.”
F.2d at 264-65.
Hall, 658
If, at this step, the Government cannot carry
its “evidentiary burden of proving that [the claimant] remains
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 work-related physical and
mental activities in a work setting on a regular and continuing
basis . . . [which] means 8 hours a day, for 5 days a week, or
an equivalent work schedule” (internal emphasis and quotation
marks omitted)). The RFC includes both a “physical exertional
or strength limitation” that assesses the claimant’s “ability to
do sedentary, light, medium, heavy, or very heavy work,” as well
as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined
by the ALJ only after [the ALJ] considers all relevant evidence
of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
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able to work other jobs available in the community,” the
claimant qualifies as disabled.
Hines, 453 F.3d at 567.5
III. ANALYSIS
Plaintiff asserts that the Commissioner erred with respect
to four issues: (1) the ALJ failed to fully consider the
deposition testimony of Dr. William J. Meggs; (2) the failure
alleged in Plaintiff’s first assignment of error caused the ALJ
to make other harmful legal errors; (3) the ALJ erred by making
contradictory findings about Plaintiff’s RFC; and (4) the ALJ
relied on flawed vocational expert (“VE”) testimony. (Pl.’s Br.
in Supp. of Mot. for J. (“Pl.’s Br.”) (Doc. 12) at 5.) Because
this court finds that the record supports the ALJ’s findings
with regard to all four issues raised by Plaintiff, this court
will not reverse Commissioner’s findings.
A.
Weight of Dr. Meggs’ Deposition
Plaintiff’s first and second arguments stem from
Plaintiff’s contention that the ALJ did not properly consider
the opinion of Dr. Meggs, a physician who examined Plaintiff.
(Pl.’s Br. (Doc. 12) at 6-14.) Dr. Meggs’ opinion was given in a
deposition that occurred in a lawsuit that Plaintiff and her
5
A claimant thus can qualify as disabled via two paths
through the five-step sequential evaluation process. The first
path requires resolution of the questions at steps one, two, and
three in the claimant’s favor, whereas, on the second path, the
claimant must prevail at steps one, two, four, and five.
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husband filed against Phoenix Restoration Services. (Tr. at
344-10.) Dr. Meggs testified at that deposition that his role
was “expert witness” and treating physician. (Id. at 357.) He
was hired as an expert witness, but clinical consultation was a
part of Dr. Meggs’ interaction with Plaintiff. (Id.) Plaintiff
specifically asserts that, “[t]he Administrative Law Judge did
not consider fully or explain the weight given to Dr. Meggs’s
deposition.” (Pl.’s Br. (Doc. 12) at 8.)
However, the ALJ’s decision itself suggests otherwise. The
ALJ explained:
As for the opinion evidence, the undersigned
accords little weight to the opinion of
Dr. Meggs . . . . He examined the claimant on only
two occasions, and his opinion appears to be based in
large part on the claimant’s subjective reports rather
than any specific clinical observations.
(Tr. at 17.) In her decision, the ALJ explicitly referenced the
deposition testimony of Dr. Meggs and explains the weight
accorded to that evidence. (Id.) It is well-settled that an ALJ
is not required to make a detailed analysis of every piece of
evidence. See Kelly v. Astrue, No. 5:08-CV-289-FL, 2009 WL
1346241, at *11 n.3 (E.D.N.C. May 12, 2009) (citing Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)); see also Haynes
v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005) (“The ALJ need
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not, however, provide a ‘complete written evaluation of every
piece of testimony and evidence.’”).
Further, the ALJ explained in detail why she did not afford
Dr. Meggs’ opinion greater weight. Dr. Meggs did not perform lab
tests but concluded, based on a physical examination alone, that
Plaintiff suffered from irritant rhinosinusitis, reactive upperairway dysfunction syndrome (“RUDS”) and airborne contact
dermatitis. (Tr. at 307-310.) Dr. Meggs found that, due to this
condition, Plaintiff’s prospects for gainful employment were
“dismal.” (Id. at 310.) The ALJ stated that she assigned little
weight to Dr. Meggs’ opinions because they were inconsistent
with both other medical evidence and Plaintiff’s own reported
activities of daily living. (Id. at 17-18.) The ALJ specifically
asserts that Plaintiff’s self-reported activity level6 seems to
contradict the expected lifestyle limitations of a patient with
RUDS suggested by Dr. Meggs. (Id.)
The medical evidence also supports the ALJ’s findings. On
April 18, 2005, Plaintiff was seen by a resident overseen by
Robert Chin, Jr., M.D. (Id. at 286.) Plaintiff reported
Plaintiff testified that she attended church once a week
(Tr. at 37-38), visited friends in their homes once per week
(id. at 38), and went to the movies bi-monthly (id. at 39).
Plaintiff also testified that her husband regularly won trips
through his job, and that the family generally all went on these
trips. (Id. at 45.) These trips usually involved flying to the
destination and staying in a hotel. (Id. at 45-46.)
6
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headaches, labored breathing, and teary eyes after being exposed
to the fumes in her home. (Id.) Plaintiff also reported labored
breathing upon exposure to strong scents. (Id.) After a physical
exam and lab work, Dr. Chin diagnosed Plaintiff with possible
reactive airways disease (“RADS”). (Id. at 287.) On May 23,
2005, Plaintiff reported that she was doing well when she
avoided exposure to her former home. (Tr. at 281.) This medical
evidence is in direct contradiction with Dr. Meggs’ testimony
regarding Plaintiff’s limitations.
The ALJ goes on to say that she “accords greater weight to
the opinion of the State agency medical consultant, Dr. Cohen.”
(Id. at 18.) The ALJ found Dr. Cohen’s opinion more consistent
with the evidence overall. (Id.) The evidence shows that the ALJ
did consider Dr. Meggs’ deposition testimony and further shows
why the ALJ accorded it little weight. Accordingly, Plaintiff’s
argument that the ALJ failed to fully consider Dr. Meggs’
deposition testimony is without merit and does not indicate that
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the ALJ’s decision was not based on substantial evidence.7 The
record indicates that the ALJ considered Dr. Meggs’ opinion,
along with the opinions of other medical professionals, and gave
Dr. Meggs’ testimony due weight when taken in context of the
full record.
B.
Plaintiff’s RFC
Plaintiff next contends that the ALJ erred in formulating
the RFC. Plaintiff’s argument is based on Plaintiff’s previous
assertion that the ALJ failed to give proper weight to
Dr. Meggs’ deposition testimony. However, as explained supra,
the ALJ gave proper weight to Dr. Meggs’ testimony, and the
record shows that the ALJ’s RFC determination is supported by
substantial evidence.
State agency consultative physician, Dr. Alan. B. Cohen,
concluded that Plaintiff was capable of medium work and must
7
Generally, the treating physician rule “requires a court
to accord greater weight to the testimony of a treating
physician, the rule does not require that the testimony be given
controlling weight. The ALJ may choose to give less weight to
the testimony of a treating physician if there is persuasive
contrary evidence.” Hunter v. Sullivan, 993 F.2d 31, 35 (4th
Cir. 1992) (internal citations omitted). Like with the present
case, the Fourth Circuit has found that the ALJ did not err when
the ALJ afforded “little weight” to the opinion of a treating
physician when the treating physician’s diagnosis was “based
largely upon the claimant's self-reported symptoms” and
Plaintiff’s “laboratory tests and medical examinations were
within normal parameters.” Mastro v. Apfel, 270 F.3d 171, 178
(4th Cir. 2001).
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avoid even moderate exposure to respiratory irritants. (Tr. at
337-40.) Dr. Cohen specifically addressed Dr. Meggs’ findings
that Plaintiff’s “prognosis for gainfule [sic] employment is
dismal.” (Id. at 339-40.) Dr. Cohen did not find evidence from
Plaintiff herself or Plaintiff’s medical record to support such
a finding. (Id.) However, based on the evidence at hand, Dr.
Cohen’s limitation precluded even moderate irritant exposure.
Looking at the record as a whole, the ALJ found that Dr. Cohen’s
opinion regarding environmental irritant exposure was
incongruent with Plaintiff’s self-reported activities of daily
living and travel. (Id. at 16-18.) Accordingly, the ALJ’s
determination that Plaintiff was capable of medium work with no
more than moderate exposure to respiratory irritants is
supported by, and consistent with, her activities of daily
living and travel.
Further, although Dr. Meggs stated that people suffering
from RUDS were unable to get out of the house because they
become so ill from low-level exposure to everyday toxins,
Plaintiff was able to dine out several times a week, go to
church, grocery shop and attend movies. More notably, as
discussed supra, Plaintiff has traveled extensively, which has
included traveling on an airplane, taking cruises, riding the
Metro, staying in hotels and availing herself of other
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commercial and residential accommodations. (Id. at 16.) This
contradicts Dr. Meggs’ opinion that Plaintiff would only be able
to work in a pristine environment, such as “a glass booth.” (Id.
at 407.)
As there is substantial evidence to support the ALJ‘s RFC
determination regarding Plaintiff’s exposure to environmental
respiratory irritants, Plaintiff’s argument on this issue should
be rejected.
C.
VE Testimony
Finally, Plaintiff argues that the hypothetical questions
to the VE failed to reflect both Dr. Meggs’ limitation to a
“pristine” work environment and Dr. Cohen’s opinion that
Plaintiff must avoid even moderate exposure to respiratory
irritants. (Pl.’s Br. (Doc. 12) at 16.) As noted above, the ALJ
discounted Dr. Meggs’ opinion for several reasons. In addition,
Commissioner contends that Dr. Cohen was not aware of
Plaintiff’s extensive travel when he made his recommendation
regarding environmental limitations. (Def.’s Mem. in Supp. of
Mot. for J. on the Pleadings (Doc. 18) at 8.) Moreover, when
questioned about possible fumes and odors in the work place, the
VE testified that such factors are more properly characterized
as accommodations rather than vocational considerations. (Tr. at
87-90.) Thus, in the jobs identified by the VE, a person who
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could not tolerate more than moderate exposure to such irritants
could request that an employer take steps to limit the presence
of such irritants. Inasmuch as the hypothetical questions posed
to the VE properly reflected all the limitations as found by the
ALJ, there was no error at this step of the sequential
evaluation. See Mickles v. Shalala, 29 F.3d 918, 929 n.7 (4th
Cir. 1994) (concluding that the hypothetical question presented
to the VE need only include the impairments and limitations that
the ALJ finds credible). Consequently, Plaintiff’s argument on
this issue lacks merit. Plaintiff has made no showing negating a
finding that the ALJ’s determination denying Plaintiff benefits
were based on substantial evidence.
IV.
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Motion for
Judgment Reversing or Modifying the Decision of the Commissioner
or Remanding the Cause for a Rehearing (Doc. 11) is DENIED, that
the Commissioner’s Motion for Judgment on the Pleadings (Doc.
17) is GRANTED, and that this case is DISMISSED WITH PREJUDICE.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
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This the 29th day of April, 2015.
_____________________________________
United States District Judge
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