FITZGERALD v. COLVIN

Filing 15

MEMORANDUM OPINION AND ORDER. Signed by JUDGE CATHERINE C. EAGLES on 8/6/2014, that the Commissioner's decision finding no disability is affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Doc. # 10 ) is DENIED, that Defendant's Motion for Judgment on the Pleadings (Doc. # 13 ) is GRANTED. A judgment will be entered contemporaneously with this order. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LAURA ANN FITZGERALD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.

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1:13-CV-45

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Plaintiff Laura Ann Fitzgerald brought this action to obtain judicial review of a final
decision of the defendant, the Commissioner of Social Security, denying her claims for Disability
Insurance Benefits and Supplemental Security Income. The parties have filed cross-motions for
judgment, and the administrative record has been certified to the Court for review. The Court will
grant the Commissioner’s motion and affirm the ALJ’s decision.
I.

PROCEDURAL HISTORY
Ms. Fitzgerald filed her applications for benefits in October 2009, alleging a disability

onset date of August 20, 2008. (Tr. at 150-55.)2 Her applications were denied initially (Tr. at 74,
75, 78-82) and upon reconsideration (Tr. at 76, 77, 86-93, 94-103). Thereafter, she requested a

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, Ms. Colvin is 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).
2

Transcript citations refer to the Administrative Transcript of Record filed manually with the
Commissioner’s Answer [Doc. # 7].

hearing de novo before an Administrative Law Judge (“ALJ”). (Tr. at 104.) After a hearing, the
ALJ determined that Ms. Fitzgerald was not disabled within the meaning of the Act. (Tr. at 7-20.)
The Appeals Council denied Ms. Fitzgerald’s request for review, making the ALJ’s decision final
for purposes of judicial review. (Tr. at 1-5.)
II.

LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The scope of the
court’s review of this administrative decision is “extremely limited.” Frady v. Harris, 646 F.2d
143, 144 (4th Cir. 1981). “[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.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012) (internal brackets marks omitted). The issue before this Court “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).
III.

THE ALJ’S DECISION
The ALJ applied the well-established five-step process to evaluate Ms. Fitzgerald’s

applications. See Hancock, 667 F.3d at 472. The ALJ found at step one that Ms. Fitzgerald had
not engaged in “substantial gainful activity” since her alleged onset date. At step two, the ALJ
determined that Ms. Fitzgerald suffered from multiple severe impairments: diabetes, chronic
pancreatitis, thyroid disorder, bipolar disorder, generalized anxiety disorder, post-traumatic stress
disorder (“PTSD”), major depression, attention deficit disorder (“ADD”), mood disorder and a
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history of substance abuse. (Tr. at 14.) The ALJ found at step three that none of these
impairments met or equaled a disability listing. (Tr. at 14-15.) After assessing Ms. Fitzgerald’s
residual functional capacity (“RFC”), the ALJ determined that she could perform light work
involving simple, routine and repetitive tasks and only occasional interaction with the general
public (Tr. at 16) and that she could return to her previous work as an office helper. (Tr. at 18-19.)
Alternatively, the ALJ found that other jobs existed in significant numbers in the national economy
that Ms. Fitzgerald could perform. (Tr. at 19-20.) Accordingly, the ALJ determined that Ms.
Fitzgerald was not “disabled” as defined by the Act. (Tr. at 20.)
IV.

CONTENTIONS
Ms. Fitzgerald makes several arguments on judicial review. First, Ms. Fitzgerald

contends that the ALJ failed to consider the opinion of a treating physician, Dr. Gregory H.
Wlodarski. (Pl.’s Br. [Doc. # 11] at 4-5.) Second, Ms. Fitzgerald claims the ALJ failed to
mention, much less assess, the weight given to Ms. Fitzgerald’s mother’s testimony. (Id. at 5-6.)
Finally, she asserts that the ALJ’s credibility assessment is not supported by substantial evidence.
(Id. at 6-11.) The Commissioner contends that the ALJ considered all the evidence and that
substantial evidence supports the ALJ’s determination that Ms. Fitzgerald was not disabled.
V.

DISCUSSION
A.

Opinion Evidence

Ms. Fitzgerald first argues that the ALJ “completely ignored the opinion of Dr. Wlodarski
that Ms. Fitzgerald was disabled due to her multiple impairments.” (Pl.’s Br. [Doc. # 11] at 5.)
In particular, Ms. Fitzgerald points to a notation in Dr. Wlodarski’s April 26, 2010, treatment
record which states as follows:
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SUBJECTIVE
...
ADHD: Comment: parents in with [patient] to support her case for
disability as [patient] is too easily discardable [sic]3and
emotionally unstable to care for her illnesses let alone work; indeed
she comes to each [appointment] unprepared and use of insulin and
taking meals is certainly erratic and sub optimal.
(Tr. at 461) (emphasis added). Ms. Fitzgerald concedes that this alleged opinion does not go into
great detail about the functional limitations caused by her impairments, but asserts that even a
conclusory opinion is entitled to the ALJ’s consideration.
The context of this note, however, makes it clear that Dr. Wlodarski was not offering an
opinion that Ms. Fitzgerald was “too [distractible] and emotionally unstable . . .to work;” rather
by its own terms he was repeating the subjective concerns of Ms. Fitzgerald’s parents. A doctor’s
statement that merely reflects the subjective opinions of others does not constitute a medical
opinion requiring the ALJ’s evaluation. See e.g., Mitchell v. Comm'r of Soc. Sec., 330 Fed. App’x
563, 569-70 (6th Cir. 2009) (finding doctor’s statement that claimant was disabled based upon
concerns of claimant’s wife “the mere regurgitation of third-party statements concerning a
claimant’s alleged symptoms” which did not amount to a medical opinion); Moxley v. Colvin, No.
1:13CV460, 2014 WL 2167878, at *5 (M.D.N.C. May 23, 2014) (unpublished) (Schroeder, J.)
(finding treatment notes reporting claimant’s subjective symptoms not medical opinions requiring
ALJ consideration). And, of course, opinions that a claimant is disabled or unable to work

3

The Court assumes from the context that the word intended here was “distractible” rather than
“discardable.”
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involve the ultimate issue of disability, which is reserved for the Commissioner. See 20 C.F.R. §§
404.1527(e), 416.927(e).
The statement that Ms. Fitzgerald “comes to each [appointment] unprepared and
use of insulin and taking meals is certainly erratic and sub optimal,” (Tr. at 461), appears
much more likely to be a statement by Dr. Wlodarski, both by its terms and upon review of
other medical records from Dr. Wlodarski; it seems clear that Dr. Wlodarski did from time
to time use the “Subjective” field to write down his own comments and to document some
of the discussions he had with Ms. Fitzgerald. But that factual observation is a far cry
from opinion testimony which the ALJ must consider. In any event, these comments are
consistent with the ALJ’s findings, as the ALJ noted that Ms. Fitzgerald was not compliant
with her medical care requirements. (Tr. at 17.) In sum, the Court finds no error in the
ALJ’s failure to discuss Dr. Wlodarski’s April 26, 2010, statement.
Ms. Fitzgerald next asserts that the ALJ erred in failing to discuss or weigh the opinion of
Ms. Fitzgerald’s mother, Kathleen White, who testified that she “subsidized her daughter’s work”
as an office helper for the family business and that Ms. Fitzgerald could not focus on simple tasks,
often got distracted, did not follow directions correctly, was not logical, and would often jump
from one task to another. (Pl.’s Br. [Doc. # 11] at 5, citing Tr. at 58-59, 60-61, 62.)
While it is true that the ALJ’s decision does not mention Ms. White’s testimony
specifically about Ms. Fitzgerald’s work as an office assistant, the ALJ did discuss other aspects of
Ms. White’s testimony and provided a fair summary of her testimony. (Tr. at 17.) The ALJ also
noted that she had carefully considered the “entire record.” (Tr. at 16; see also Tr. at 17.) An
ALJ is not required to discuss every sentence of a witness’s testimony so long as it is clear she
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considered the relevant evidence and then creates an “accurate and logical bridge” between the
evidence and her conclusions. See Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000); see also
Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998); Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995).
That was done here.
B.

Credibility

Ms. Fitzgerald contends that the ALJ’s reasons for discounting her credibility are not
supported by the record. Specifically, Ms. Fitzgerald claims that, in finding her not fully credible,
the ALJ incorrectly concluded that (1) her diabetes and thyroid symptoms were treated
conservatively; (2) treatment for her pancreatitis was sporadic and conservative; (3) symptoms
from her mental impairments were only moderate when Ms. Fitzgerald was compliant with
treatment; and (4) Ms. Fitzgerald engaged in a wide array of daily activities that were inconsistent
with a complete inability to work.
To the extent Ms. Fitzgerald contends that an ALJ should not be able to find a claimant not
credible merely because the claimant’s medical treatment was conservative, the Court agrees with
that principle but finds it inapplicable to this case. For many serious health conditions,
conservative treatment is appropriate, and there is no evidence in this case that more invasive (or
“non-conservative”) treatment would have been helpful. See Viverette v. Astrue, No. 5:07–cv–
395–FL, 2008 WL 5087419, at *2 (E.D.N.C. Nov. 24, 2008) (unpublished) (holding that “[m]any
potentially disabling conditions can be treated by routine and conservative treatment,” and that the
ALJ’s characterization of a claimant’s diabetes treatment as conservative “alone does not provide
any insight into the severity of a given condition and may even belie the condition's seriousness.”)
(emphasis added).
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But here, the ALJ noted that Ms. Fitzgerald was treated conservatively as part of finding
that she had not been compliant with recommended conservative treatment for her diabetes and
hypothyroidism. (Tr. at 17.) The non-compliance finding is not only accurate (see Tr. at 329,
418, 428, 455, 461, 541, 544, 545, 562, 605, 607, 609, 612, 616, 618), but is a permissible grounds
on which to discount Ms. Fitzgerald’s credibility. Viverette, 2008 WL 5087419, at *2 (finding no
error in the ALJ’s credibility analysis where, after noting the claimant’s diabetes was treated
conservatively, the ALJ considered plaintiff's lack of follow-through and compliance.) Similarly,
as to Ms. Fitzgerald’s pancreatitis, the ALJ noted that Ms. Fitzgerald’s treatment was
“conservative and sporadic,” (Tr. at 17), so that it is clear the ALJ was discounting her credibility
because of the sporadic nature of the treatment, not just its conservative nature. As conceded by
Ms. Fitzgerald, the ALJ’s finding that Ms. Fitzgerald sought only sporadic treatment for her
pancreatitis finds substantial support in the record. (See Tr. at 270, 459, 609, 841-54.)4
Ms. Fitzgerald further contends that “[a]bsent affirmative evidence that [she] is
malingering, the ALJ must provide specific ‘clear and convincing’ reasons for rejecting [her]
testimony,” citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). (Pl’s Br. [Doc. # 11] at 7.)
However, the Fourth Circuit has not adopted the “clear and convincing” standard utilized in Lester
for evaluating subjective complaints and credibility. Instead, the standard for evaluating
subjective complaints in the Fourth Circuit is set out in Craig v. Chater, 76 F.3d 585, 594-95 (4th
4

Ms. Fitzgerald contends she was unable to afford further medical treatment related to her
pancreatitis “due to her loss of insurance since she stopped working.” (Pl.’s Br. [Doc. # 11] at 8.)
The record, however, contains only one reference to an inability to pay for treatment in a May 16,
2011 treatment note, (Tr. at 842), and that same note includes a statement that the doctor indicated
that he advised Ms. Fitzgerald of “options for obtaining financial assistance from the hospital as
well as from the state government.” (Id.) Ms. Fitzgerald provides no evidence and makes no
argument that she attempted to pursue either option or that either was unsuccessful.
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Cir. 1996). The ALJ’s analysis comports with the standards set forth in Craig and she did not
commit error in her assessment of Ms. Fitzgerald’s credibility in connection with her diabetes and
hypothyroidism.
To the extent Ms. Fitzgerald argues that the existing medical records demonstrate the
severity of her pancreatitis, this argument misses the mark. The ALJ found that Ms. Fitzgerald
suffered from severe pancreatitis at step two, (Tr. at 14), and Ms. Fitzgerald does not argue that her
pancreatitis meets or equals the criteria of any listed impairment or provide the Court with any
additional limitations that the ALJ should have included in the RFC based upon her pancreatitis.
Ms. Fitzgerald next contends that the ALJ incorrectly found that symptoms arising from
Ms. Fitzgerald’s mental impairments were only moderate during periods of compliance with
treatment. While there is evidence both ways, it is the ALJ’s duty to resolve those conflicts in the
evidence, not this Court’s duty. There is substantial evidence that her mental symptoms were not
disabling. (Tr. at 701, 703, 273-289, 302-27, 502-537.)
Finally, Ms. Fitzgerald argues that the ALJ erred by failing to cite examples when he
discounted her credibility because she could undertake a “wide array of daily activities that are
inconsistent with a complete inability to work.” (Tr. at 18.) While the ALJ did not provide
specific examples as part of his credibility determination, the ALJ did provide such examples as
part of the step three analysis. (Tr. at 15 (citing Exhibit 5F [a consultative examination by Dr.
Scott T. Schell dated December 17, 2009] and hearing testimony).) Where an ALJ discusses
evidence in one part of the decision, there is no requirement that she rehash such evidence at
subsequent stages of her decision. McCartney v. Apfel, 28 F. App’x 277, 279-80 (4th Cir. 2002)
(rejecting challenge to ALJ’s finding and stating “that the ALJ need only review medical evidence
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once in his decision”); Kiernan v. Astrue, No. 3:12CV459-HEH, 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.”)
VI.

CONCLUSION
The Court's duty is to determine if substantial evidence supports the ALJ's conclusion, not

to “re-weigh conflicting evidence, make credibility determinations, or substitute our judgment for
that of the [Commissioner].” Craig, 76 F.3d at 589. Substantial evidence in the record supports
the ALJ’s decision and therefore it must be upheld.
IT IS THEREFORE ORDERED that the Commissioner=s decision finding no disability
is affirmed, that Plaintiff=s Motion for Judgment on the Pleadings [Doc. # 10] is DENIED, that
Defendant=s Motion for Judgment on the Pleadings [Doc. # 13] is GRANTED. A judgment will
be entered contemporaneously with this order.
This 6th day of August, 2014.

____________________________________
UNITED STATES DISTRICT JUDGE

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