CARTER v. COLVIN
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STAES MAGISTRATE JUDGE L. PATRICK AULD signed on 5/2/2016. It is therefore RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that judgment be entered for Defendant. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JENNIFER CARTER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:13cv334
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Jennifer Carter, brought this action under the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
The Court has before it the
certified administrative record (cited herein as “Tr. __”), as well
as the parties’ cross-motions for judgment (Docket Entries 10, 13;
see also Docket Entry 11 (Plaintiff’s Memorandum); Docket Entry 14
(Defendant’s Memorandum); Docket Entry 15 (Plaintiff’s Reply)).
For the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB.
denial
of
that
application
initially
(Tr. 166-72.)
(Tr.
84-100)
and
Upon
on
reconsideration (Tr. 101-20), she requested a hearing de novo
before an Administrative Law Judge (the “ALJ”) (Tr. 136-37).
Plaintiff,
her
attorney,
and
a
vocational
expert
(the
“VE”)
attended the hearing. (See Tr. 32-65.) The ALJ subsequently ruled
Plaintiff not disabled under the Act.
(Tr. 10-31.)
The Appeals
Council denied her request for review (Tr. 1-6), making the ALJ’s
ruling the Commissioner’s final decision for purposes of judicial
review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2013.
2.
[Plaintiff] has not engaged in substantial gainful
activity since August 21, 2009, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
multiple sclerosis; diabetes mellitus; obesity; sleep
apnea; degenerative joint disease of right knee;
degenerative disc disease of lumbar spine, cervical
spine, and thoracic spine; bilateral carpal tunnel
syndrome; depression; anxiety; and obsessive-compulsive
disorder.
. . . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . ., except that she
requires a sit/stand option of 30 minutes and the ability
to use a handheld assistive device for balancing.
[Plaintiff] can occasionally climb ramps and stairs;
never climb ladders, ropes, or scaffolds; occasionally
balance and crouch; frequently stoop and kneel; never
2
crawl; and frequently, but not constantly, use the upper
extremities
for
gross
and
fine
manipulation.
Additionally, [Plaintiff] should avoid concentrated
exposure to extreme cold and extreme heat; should avoid
concentrated exposure to hazards; due to the effects of
multiple sclerosis and mental impairments, as well as the
medication side effects, is limited to simple, routine,
and repetitive tasks in a low-stress job, by this it is
meant she can apply commonsense understanding to carry
out oral, written and diagrammatic instructions; can get
along with co-workers; and can have only occasional
contact with the public.
. . . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from August 21, 2009, through
the date of this decision.
(Tr.
15-25
(bold
font
and
internal
parenthetical
citations
omitted).)1
II.
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 [the Court’s] review of [such a] decision . . . is extremely
1
In light of the differing terminology between the ALJ’s decision and the
parties’ briefs and much of the medical evidence, this opinion uses the terms
“multiple sclerosis” and “MS” interchangeably.
3
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under this
extremely limited review standard.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the 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.” Hines, 453 F.3d at 561
(brackets and internal 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, 401 (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) (brackets and internal
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 (brackets
4
and internal 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).
When confronting that issue, the Court must take 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 . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
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 (citations omitted).
5
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
This sequential evaluation process (the “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).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.’
working, benefits are denied.
If the claimant is
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
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
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (citation omitted).
6
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
([the] ‘RFC’).”
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.
See 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.”
at 264-65.
Hall, 658 F.2d
If, at this step, the Commissioner cannot carry her
“evidentiary burden of proving that [the claimant] remains able to
work other jobs available in the community,” the claimant qualifies
as disabled.
Hines, 453 F.3d at 567.5
4
The “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 the RFC to reflect the 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” (emphasis and internal 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. The “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 establish disability 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
(continued...)
7
B.
Assignments of Error
Plaintiff asserts that the ALJ erred (1) by formulating an RFC
“inconsistent with the evidence” (Docket Entry 11 at 4) and (2) in
evaluating certain medical opinions (id. at 6-7).
Defendant
contends otherwise and urges that substantial evidence supports the
ALJ’s findings.
(See Docket Entry 14.)
1.
The RFC
Plaintiff argues that the ALJ erred in fashioning the RFC in
three regards. First, he allegedly “denied [Plaintiff’s] claim for
benefits relying on several misstatements of the record.”
Entry 11 at 4.)6
(Docket
Second, he purportedly “made several observations
in his decision which demonstrate that he did not adequately review
the record.”
(Id. at 5.)
Third, according to Plaintiff, “[t]he
ALJ’s decision is also flawed because he did not consider the only
functional capacity evaluation ([the] “FCE”) in the record . . . .”
(Id.)
These contentions lack merit.
i.
Alleged Misstatement
To begin with, Plaintiff maintains that the ALJ misstated the
record
and
“erred
by
finding
that
[Plaintiff]
could
sustain
5
(...continued)
the SEP appear to gloss over the fact that an adverse finding against a claimant
at 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.”).
6
Although maintaining that the ALJ relied on “several misstatements,” Plaintiff
identifies only one alleged misstatement. (See Docket Entry 11 at 4-6; see also
Docket Entry 15 (identifying no additional alleged misstatements).)
8
substantial
gainful
activity
documented MS exacerbations.”
contention,
Plaintiff
based
upon
the
(Id. at 4-5.)
alleges
that
“[the
number
of
her
In support of this
ALJ]
found
that
[Plaintiff] only had one severe flare up of MS in the past 2 years.
(Tr[.] 19-22).
Yet, the record reveals that she has experienced
numerous flare ups of this condition.”
(Docket Entry 11 at 4.)
Plaintiff further contends that the VE “present at the hearing
testified that [Plaintiff] would be disabled if she experienced
even one exacerbation per year.”
(Id.)
In actuality, the ALJ found that, at the hearing on August 18,
2011:
[Plaintiff] said that her worst impairment was multiple
sclerosis, and she had not had magnetic resonance imaging
in about a year.
[Plaintiff] reported that she had
flare-ups about every three to six months, but her last
severe flare-up was about two years ago.
[Plaintiff]
reported that her flare-ups were caused by stress and
heat, and they lasted from three days to three weeks.
She stated that her exacerbations caused balance
problems, and she required the use of a cane.
(Tr. 19.)
The ALJ’s findings accurately summarize Plaintiff’s
testimony.
(See Tr. 45-47.)
In particular, she testified that,
“[t]he last time that [her MS] flared up on [her, she] went numb on
[her] right arm and [her] right leg, and [she] couldn’t even pick
up a pencil to write.
really, really bad.”
[She] couldn’t hardly walk.
(Tr. 45.)
It was just
In response to the ALJ’s questions
regarding when this exacerbation occurred, Plaintiff testified,
9
(Id.)7
“It’s been a couple years.”
Plaintiff further testified
that “[s]ome [exacerbations] are less severe than others.”
46.)
As to their duration, Plaintiff testified:
(Tr.
“It depends.
It
usually can last, usually around three days if it’s a less severe
one.
A real severe one will last — it can last anywhere from a
week to three weeks.”
(Id.)
Substantial evidence supports the ALJ’s determination that
Plaintiff’s multiple sclerosis remained stable, with improvements
and without severe exacerbations, during the relevant period (i.e.,
August 21, 2009, through November 3, 2011 (see Tr. 25)).
21-22; see also Tr. 19.)
(See Tr.
As to stability, Plaintiff’s brain MRIs
in September 2008, June 2009, August 2009, and August 2010 revealed
no material changes in the number, appearance, and stability of
Plaintiff’s brain lesions. (See Tr. 346, 351, 359, 697, 717, 988.)
Moreover, Plaintiff’s primary neurologist, Dr. Tellez, assessed
Plaintiff’s multiple sclerosis as stable on May 8, 2009, June 4,
2009, February 1, 2010, August 19, 2010, and March 11, 2011.
(See
Tr. 351, 355, 797, 799, 986, 987-88.)
In regard to exacerbations, Plaintiff contends that, “[a]s Dr.
Skeen noted in October of 2009, she was experiencing around 2
exacerbations per year.”
(Docket Entry 11 at 4.)
overstates Dr. Skeen’s observation.
Plaintiff
According to Dr. Skeen’s
records,
7
Emergency department records reflect that this “[a]cute multiple sclerosis
exacerbation” occurred around August 9, 2009. (Tr. 702-03.)
10
[Plaintiff] reports that she had 2 bad spells in the past
year, the first one involving her right eye with
significant improvement and resolution of her symptoms,
and in her last episode she was completely numb on the
right side. . . . [Plaintiff] reports that she currently
also has a torn meniscus in her right knee and is pending
a surgical correction.
(Tr. 643.)
In examining Plaintiff, Dr. Skeen found that:
[Plaintiff] is a well-developed, well-nourished female in
no acute distress who is walking with a cane and a slight
limp.
Her examination today reveals some medial knee
tenderness. . . . There is mild weakness in the proximal
right leg and a giveway weakness below the knee. Her
gait is mildly wide based and somewhat antalgic walking
with a cane.
(Id.)
Dr. Skeen “saw no significant enhancement” in her brain
lesions in her August 2009 MRI compared to her previous MRI
results.
(Tr. 643-44.)
Further:
[Dr. Skeen] described to [Plaintiff] that certainly 2
clinical exacerbations in 1 year is more than [they] like
to see and would generally be cause for altering her
medical management. [He] described to her that [they]
did not have radiographic evidence of those relapses, but
sometimes that occurs. . . . All in all, [Dr. Skeen]
described to her that radiographically there does not
appear to be much change, but clinically she certainly
appears to have experienced 2 relapses in one year. [He]
told [Plaintiff] it was reasonable, therefore, to
consider altering her regimen, and [they] discussed the
possibility of [various medicines. Plaintiff declined
one medicine option as too potent and selected another
medicine, which Dr. Skeen prescribed.] . . . [He] did
not schedule her for follow-up . . . .
(Tr. 644.)
Thus, Dr. Skeen determined that, based on Plaintiff’s
reported symptoms, Plaintiff appeared to have experienced two
multiple sclerosis exacerbations in the year prior to October 2009,
11
not that Plaintiff had an ongoing pattern of experiencing two
multiple sclerosis exacerbations each year.
(Compare Tr. 643-44,
with Docket Entry 11 at 4.)8
Plaintiff also maintains that she suffered exacerbations in
August through October 2007, September 2008, May 2009, August 2009,
February 2010, October 2010, and March 2011.
at 4.)
(See Docket Entry 11
As the alleged exacerbations in 2007, 2008, and May 2009
predate Plaintiff’s onset date, they do not undermine the ALJ’s
conclusion
that
“[Plaintiff’s]
multiple
sclerosis
.
.
.
[experienced] improvements and stability . . . after the alleged
onset date” (Tr. 21).
alleged
As discussed below, Plaintiff’s remaining
exacerbations
determination
generally
that
stable,
likewise
Plaintiff’s
with
fail
to
multiple
improvements
exacerbations, during the relevant period.
undermine
the
sclerosis
and
ALJ’s
remained
without
severe
(See Tr. 21-22; see
also Tr. 19.)
On February 1, 2010, Dr. Tellez noted that “[Plaintiff] has
not had any recent exacerbation of her multiple sclerosis.”
8
(Tr.
Notably, Dr. Skeen’s report provides substantial evidence for the ALJ’s
conclusion that “the medical evidence showed continued improvement and
stabilization [of Plaintiff’s multiple sclerosis] after the alleged onset date.”
(Tr. 21.)
For instance, although medical records reflect that Plaintiff
experienced a slight weakness in her right arm immediately before and after her
alleged onset date (see Tr. 345, 348), Dr. Skeen’s report contains no mention of
Plaintiff’s right arm; instead, it only identifies weakness in Plaintiff’s right
leg, which possessed a torn meniscus (Tr. 643). Notwithstanding this weakness,
Dr. Skeen concluded that Plaintiff was “in no acute distress” and could walk
“with a cane and a slight limp” although “[h]er gait [wa]s mildly wide based.”
(Id.) Plaintiff’s rejection of a medicine option as too potent and Dr. Skeen’s
decision not to schedule Plaintiff for a follow-up appointment (see Tr. 644)
provide further evidence that Plaintiff’s multiple sclerosis remained generally
stable and had improved from her August 2009 exacerbation (see Tr. 702-03).
12
797.)
As Dr. Tellez explained on February 23, 2010, however,
Plaintiff experienced a “pseudo exacerbation of her MS as she went
to a hot tub on Thursday after being exercising [sic] in a gym
where she was swimming.
She has been advised in the past to avoid
heat, as this will worsen her demyelinating disorder in the way of
the symptoms.”
(Tr. 866.)
Nevertheless, at her appointment on
February 23, 2010, Plaintiff was in “[n]o acute distress” and had
“[n]ormal tone, bulk, and strength in [her] four extremities.”
(Tr.
865-66
(emphasis
omitted).)
Moreover,
“[i]n
[that]
examination, [Dr. Tellez] d[id] not see any difference from the one
compared in the note documented dated [sic] February 1, 2010.”
(Tr. 866.)
Plaintiff
Thereafter, in August 2010, Dr. Tellez noted that
had
experienced
“no
major
relapses.”
(Tr.
984.)
Accordingly, substantial evidence supports the conclusion that this
pseudo exacerbation did not qualify as severe.
See Hunter, 993
F.2d at 34.
At appointments with individuals other than her neurologist,
Plaintiff reported exacerbations of her multiple sclerosis in
October
2010
and
March
2011.
(See
Tr.
1022-24,
1056-59.)
Substantial evidence supports the ALJ’s determination that neither
alleged
exacerbation
qualified
as
severe.
As
to
the
first
exacerbation, Plaintiff reported in a psychotherapy appointment on
October 20, 2010, that “[o]ver the weekend her MS flared up and she
had to go to the hospital.
[H]er daughter got married over t[he]
13
weekend up at the beach.
(Tr. 1022.)
that
At that appointment, however, the psychologist found
“[Plaintiff]
[Plaintiff]
[Plaintiff] said she cried all n[ig]ht.”
was
ambulated
awake,
alert
independently
and
but
oriented
has
MS.
.
.
.
.
[Plaintiff]
reported reduced hearing and vision but it appeared functional
during evaluation.
[Plaintiff’s] speech was clear.
processes were logical and goal-directed.”
Thought
(Tr. 1023.)
As to the latter exacerbation, at a March 2011 “routine follow
up
on
depression,
Plaintiff
MS,
“[r]eport[ed]
type
that
2
diabetes,
her
MS
has
especially since her mom has had a stroke.”
appointment,
however,
Plaintiff
and
[hypertension],”
been
flaring
(Tr. 1057.)
“ambulat[ed]
some,
At that
normally,”
with
“normal gait and station,” and was “healthy-appearing” and not in
acute
distress.
(Tr.
1058.)
Furthermore,
notwithstanding
Plaintiff’s mother’s September 2010 stroke (see Tr. 1022), Dr.
Tellez found in March 2011 that Plaintiff’s multiple sclerosis
remained “[s]table” with “[n]o major relapses.”
(Tr. 987.)
Dr.
Tellez’s assessment of Plaintiff’s multiple sclerosis as stable,
without serious exacerbations, comports with Plaintiff’s subsequent
testimony that “[t]he last time that [her multiple scerosis] flared
up on [her]” was “a couple years” before the August 2011 DIB
hearing. (Tr. 45.) Accordingly, substantial evidence supports the
view that neither of these alleged exacerbations qualified as
severe.
See Hunter, 993 F.2d at 34.
14
Severity
matters
for
Plaintiff’s
remaining
exacerbation
contention:
that the VE “present at the hearing testified that
[Plaintiff]
would
be
exacerbation per year.”
disabled
if
she
experienced
even
one
(Docket Entry 11 at 4 (citing Tr. 63).)
At the DIB hearing, Plaintiff testified that her “less severe”
multiple sclerosis
exacerbations
“last[]
usually
around
three
days,” and only “[a] real severe one” lasts “from a week to three
weeks.”
(Tr. 46.)
Thereafter, Plaintiff’s counsel asked the VE
whether, “in addition to an assumption that this hypothetical
individual might be absent two days a month, if she had periodic
exacerbations of multiple sclerosis that would take her out of work
for periods as long as one to three weeks” — “even once a year” —
“would that person be employable.”
(Tr. 63.)
The VE testified
that such individual could not work on “a full-time and competitive
basis.”
(Id.)
Thus, at best, the VE’s testimony suggests that if
Plaintiff experienced one severe exacerbation each year, she could
not maintain full-time, competitive employment.
As discussed
above, however, substantial evidence supports the ALJ’s rejection
of
the
position
multiple
rendering
that
sclerosis
Plaintiff
exacerbation
inapplicable this
experienced
during
testimony,
the
and
an
annual
relevant
severe
period,
futile Plaintiff’s
“misstatement” contention.
Moreover, substantial evidence supports the conclusion that
Plaintiff’s multiple sclerosis improved during the relevant period.
15
For instance, multiple medical records indicate that, after August
2009, Plaintiff regained normal strength in her right extremities.
(Compare Tr. 345, 348 (finding, in August 2009, decreased strength
in those extremities), with Tr. 798, 856, 859, 862, 866, 982, 985,
988, 991 (assessing, after August 2009, normal strength therein).
Medical records similarly reflect that Plaintiff regained normal
gait and station after August 2009.
(Compare Tr. 346 (assessing
Plaintiff’s “Gait/Stance” as “somewhat ataxic” in August 2009),
with Tr. 803, 830, 859, 862, 866, 879, 882, 890, 982, 985, 988,
991,
1041,
1045,
1058,
1062
(assessing,
Plaintiff’s gait and station as normal).)
after
August
2009,
In addition, treatment
records following a March 2011 car accident indicate that Plaintiff
possessed a normal spinal range of motion and could walk on her
heels and toes.
(See Tr. 1155-59.)
Finally, in the relevant
period, Plaintiff possessed the capacity to drive (see Tr. 1155),
to take vacations (see Tr. 1040), and to exercise (see Tr. 866).
In sum, substantial evidence supports the ALJ’s determination
that
Plaintiff’s
multiple
sclerosis
remained
stable,
with
improvements and without severe exacerbations, during the relevant
period.
ii.
Plaintiff
next
Alleged Inadequate Review
contends
that
“[t]he
ALJ
made
several
observations in his decision which demonstrate that he did not
adequately review the record.”
(Docket Entry 11 at 5.)
16
Plaintiff
identifies only one such observation:
“[the ALJ] found that
[Plaintiff] was generally not fatigued with normal sensation and
strength during examinations.
5.)
(Tr[.] 20).”
(Docket Entry 11 at
Plaintiff maintains, however, “that she was usually fatigued
with abnormal sensation even when not experiencing an exacerbation”
and “was also noted for weakness at numerous visits.”
(Id.)
As
such, Plaintiff asserts, “it would seem that the ALJ was not basing
this conclusion on the evidence of record.”
(Id.)
In making this contention, Plaintiff appears to take issue
with the ALJ’s findings regarding her sleep apnea, carpal tunnel
syndrome, and diabetes mellitus.
(See Tr. 20.)
Specifically, in
evaluating Plaintiff’s sleep apnea, the ALJ found that, “[a]side
from a treatment note in March 2011, which noted excessive daytime
sleepiness due to noncompliance with medication, the remainder of
the medical record documented that [Plaintiff] was generally active
and alert without fatigue.”
(Id.)
As to her carpal tunnel, the
ALJ found that, “[a]fter the alleged onset date in August 2009,
Sandhills
Neurologists
treatment
records
documented
slightly
reduced right upper extremity strength with normal tone and bulk.
However,
subsequent
documented
normal
extremities.”
(Id.)
neurologic
tone,
treatment
strength,
and
records
bulk
in
consistently
the
upper
Finally, in regard to her diabetes mellitus,
the ALJ found that “diabetic foot exams generally found normal
17
pedal
pulses,
no
ulceration,
and
normal
sensation.”
(Id.)
Substantial evidence supports each finding.
To begin with, substantial evidence supports the ALJ’s finding
regarding
Plaintiff’s
fatigue.
Medical
records
reflect
that
“[Plaintiff] struggles with sleep due to poor hygiene of sleep”
(Tr. 797), but that medicine helped Plaintiff’s fatigue (see Tr.
344, 797, 984; see also Tr. 799 (recommending that Plaintiff “start
doing
water
(“Recommended
aerobics
and
[Plaintiff]
good
continue
sleep
hygiene”);
sleep
hygiene.”);
Tr.
982
Tr. 1011
(recommending that Plaintiff “[m]aintain proper sleep hygiene[]
. . . and regular consistent exercise”)).
On March 23, 2011,
however, “[Plaintiff] presented with excessive sleepiness [to Dr.
Chintalapudi]. . . .
Current treatment includes provigil.
report, there is poor compliance with treatment[.]
meds when she lost her insurance.”
9
(Tr. 990.)9
By
Stopped taking
Dr. Chintalapudi
Plaintiff does not contend (1) that the ALJ erred in considering her failure
to comply with prescribed treatments when assessing her RFC or (2) that she was
financially unable to comply with these treatments. See generally Wyrick v.
Apfel, 29 F. Supp. 2d 693, 697-99 (M.D.N.C. 1998) (analyzing and rejecting
contention that the plaintiff “could not afford to receive treatment . . ., and
therefore, the ALJ could not use his failure to follow his physician’s
recommendations as part of his decision rationale”). Here, the record does not
indicate when this alleged loss of insurance occurred. For example, medical
records from less than two weeks before this appointment reflect that Plaintiff
remained compliant in her Provigil usage. (See Tr. 987.) In addition, Plaintiff
obtained medical services in the intervening fortnight, and medical records from
those examinations do not reference any cessation of medicine or insurance. (See
Tr. 977-80.)
Moreover, Plaintiff possesses a history of noncompliance with
prescribed medications unrelated to any insurance issues, calling into question
her apparent statement to Dr. Chintalapudi about the reason for her report of
noncompliance on March 23, 2011. (See, e.g., Tr. 353 (“There is fatigue and she
procrastinates to take the Provigil. She never increased it as recommended.”).)
Regardless, medical records reflect that a week after this examination, on March
30, 2011, Plaintiff possessed insurance, including for prescriptions (see Tr.
1056), and remained on Provigil (see Tr. 1058-59; see also Tr. 1056 (“[Plaintiff]
(continued...)
18
recommended that Plaintiff “restart Provigil as she responded well
in the past” and have “[a] return visit. . . in 1 year.”
92.)
(Tr. 991-
The ALJ could properly consider Plaintiff’s noncompliance
with her treatment plan in evaluating her fatigue allegations.
See Wyrick v. Apfel, 29 F. Supp. 2d 693, 697-98 (M.D.N.C. 1998)
(holding that the ALJ properly considered the detrimental effects
of the plaintiff’s noncompliance with prescribed treatments in
assessing the plaintiff’s RFC).
Moreover,
at
an
examination
only
twelve
days
Plaintiff “denied . . . fatigue” and appeared “alert.”
88.)
earlier,
(Tr. 987-
Medical records from that appointment describe Plaintiff’s
fatigue
as
“[s]table”
and
note
that
she
continued
Provigil without side effects and with compliance.”
“[t]aking
(Tr. 987.)
Other medical records likewise reflect that medicine ameliorated
Plaintiff’s fatigue.
(See, e.g., Tr. 984.)
In addition, although
Plaintiff occassionally complained of fatigue (see Tr. 643, 693,
1060), medical records show that Plaintiff frequently reported no
fatigue (see, e.g., Tr. 658, 878, 885, 984, 987).
Furthermore,
medical providers consistently described Plaintiff as “alert” (see,
e.g., Tr. 345, 348, 693, 695, 798, 856, 985, 1000, 1004), even when
she complained of fatigue (see, e.g., Tr. 693).
substantial
evidence
supports
the
ALJ’s
Accordingly,
conclusion
that
“the
remainder of the medical record documented that [Plaintiff] was
9
(...continued)
is here today for her regular follow up and to go over medications.”)).
19
generally active and alert without fatigue” (Tr. 20).
See Hunter,
993 F.2d at 34.
So too with the ALJ’s findings regarding Plaintiff’s strength.
Emergency
department
Plaintiff
“[m]oves
records
all
on
August
extremities
9,
2009,
equally,
has
state
some
that
diffuse
weakness, but there is no focal weakness or lateralizing signs.”
(Tr. 703.)
Dr. Tellez of Sandhills Neurologists found on August
17, 2009, that Plaintiff had “right hemiparesis 3+/5, left sided
limbs normal
omitted).)
tone,
bulk,
and
strength.”
(Tr.
348 (emphasis
At Plaintiff’s next appointment on August 31, 2009,
following her alleged onset date, Dr. Tellez evaluated Plaintiff’s
“[r]ight upper extremity [as] 4+/5 with normal tone and bulk.
Right lower extremity 4-/5 proximally and distally.
Normal tone
and bulk.
Left sided limbs with normal power and tone.”
(emphasis
omitted).)
Notably,
in
assessing
the
(Tr. 345
effects
of
Plaintiff’s multiple sclerosis at that visit, Dr. Tellez observed
that, “[r]egarding her right lower extremity, it is a very hard
call as she does have problems with her right knee.
told she has a torn ligament or meniscus.”
(Tr. 344.)
She has been
On November
19, 2009, Plaintiff underwent corrective arthroscopic surgery on
her torn meniscus (Tr. 673-74) that significantly improved her
condition (see Tr. 797 (“[Plaintiff] underwent right knee surgery
improving her gait and stability . . . .”); see also Tr. 943
(“[Plaintiff] is two weeks out from right knee arthoscopy . . . .
20
She states that it is a world of difference[,] the pain that she
had has gone.”)).
At subsequent medical appointments, Dr. Tellez and other
doctors repeatedly found that Plaintiff possessed normal strength,
tone, and bulk in all extremities.
866, 982, 985, 988, 991.)
(See Tr. 798, 856, 859, 862,
Medical records similarly reflect that
Plaintiff suffered no muscle weakness during this period. (See Tr.
658, 878, 889, 893, 1040, 1061.) Accordingly, substantial evidence
supports the ALJ’s determination that, “[a]fter the alleged onset
date in August 2009, Sandhills Neurologists treatment records
documented slightly reduced right upper extremity strength with
normal tone and bulk.
However, subsequent neurologic treatment
records consistently documented normal tone, strength, and bulk in
the upper extremities” (Tr. 20).
See Hunter, 993 F.2d at 34.
Substantial evidence also supports the ALJ’s finding regarding
sensation.
(See Tr. 20.)
Plaintiff’s diabetic foot exams found
“normal appearance,” “normal” pedal pulses, “normal sensation,”
and, as to “[u]lceration[,] none noted.” (Tr. 879; see also Tr.
1041 (same)).
Furthermore, medical records reflect that Plaintiff
repeatedly reported no abnormal sensation. (See Tr. 657, 877, 884,
888, 1039, 1056.)
Additionally, particularly after Plaintiff’s
knee surgery, medical records describe Plaintiff’s gait and station
as normal.
(See Tr. 803, 830, 859, 862, 866, 879, 882, 890, 982,
985, 988, 991, 1041, 1045, 1058, 1062.)
21
As such, substantial
evidence supports the ALJ’s finding that “diabetic foot exams
generally found normal pedal pulses, no ulceration, and normal
sensation” (Tr. 20).
See Hunter, 993 F.2d at 34.
iii.
The FCE
Finally, Plaintiff contends that
[t]he ALJ’s decision is also flawed because he did not
consider the only functional capacity evaluation (“FCE”)
in the record which was performed on June 15, 2010 at
Ergo Science. Though the ALJ stated that he considered
the opinion of Karin Wacker, the examiner, and gave it
little weight, he never actually considered the objective
medical evidence upon which that opinion was based.
(Docket Entry 11 at 5; see also Docket Entry 15 at 2.)
Plaintiff proffers no support for the proposition that the ALJ
failed to consider the FCE.
To the contrary, the ALJ stated that
he made “careful consideration of the entire record.”
(emphasis omitted).)
Additionally, the FCE comprises the majority
of Exhibit 35F in said record.
circumstances,
(Tr. 18
absent
(See Tr. 1160-73.)
evidence
indicating
Under these
otherwise
(which
Plaintiff has not identified), the Court must accept that the ALJ
considered the FCE in evaluating Plaintiff’s RFC.
See Reid v.
Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“The
Commissioner, through the ALJ and Appeals Council, stated that the
whole record was considered, and, absent evidence to the contrary,
we take her at her word.”).
Moreover, the record demonstrates that the ALJ considered the
FCE.
At the hearing, the ALJ inquired after the FCE, explaining
22
that Dr. Tellez’s records, in page five of Exhibit 29F, reference
an FCE, but that the ALJ “looked for it and [he] could not find
it.” (Tr. 56.) When Plaintiff’s counsel “couldn’t find it either”
(id.), the ALJ asked Plaintiff about the FCE (see Tr. 56-57).
The
ALJ then asked Plaintiff’s counsel to “try[] to get that [FCE].”
(Tr. 57.) After the hearing, Plaintiff’s counsel submitted the FCE
to the ALJ as Exhibit 35F.
(See Tr. 1172-73; see also Tr. 1172
(“Please add this report as a medical exhibit in [Plaintiff’s]
file, and with the addition of this report, we consent to the
closing of the record.”).) The ALJ then explicitly referenced this
exhibit in analyzing Plaintiff’s RFC.
(See Tr. 20 (citing “[Ex.]
35F”).)
In addition, the ALJ directly addressed the FCE in considering
the opinion of Karin Wacker, who administered the FCE.
(See Tr.
23.) Ms. Wacker’s assessment and summation of the FCE results (Tr.
1161-65) constitute the first four pages of the “copy of [the] FCE”
that Plaintiff’s counsel submitted to the ALJ (Tr. 1172).10
Thus,
by discussing Ms. Wacker’s opinion, the ALJ demonstrated that he in
fact
considered
the
late-submitted
FCE.
The
ALJ
further
demonstrated his consideration of the FCE by including a “never
crawling” limitation in the RFC (see Tr. 22), in accordance with
10
This summation includes a detailed listing of Plaintiff’s results on each
task assessed in the FCE. (See Tr. 1163.) For instance, on the “One handed
carrying” task, the “Client Performance” was “L5 lb Occ.[;]” on the “Balance on
level surfaces” task, the “Client Performance” was “Adequate[;]” and on the
“Crawling” task, the “Client Performance” was “Unable.” (Id.)
23
the FCE’s assessment that Plaintiff was “[u]nable” to “[c]rawl[]”
(Tr.
1163,
1169),
consultants’
and
contrary
assessment
“[c]rawl[]” (Tr. 94, 112).
the
State
Plaintiff
that
to
could
at
865
medical
“[f]requently”
Hence, the record rebuts Plaintiff’s
contention that the ALJ did not consider the FCE.
F.3d
agency
(“conclud[ing]
that
the
See Reid, 769
Commissioner’s
decision
satisfied the statutory requirements” and noting that “there is no
rigid requirement that the ALJ specifically refer to every piece of
evidence in his decision” (internal quotation marks omitted)).
In sum, Plaintiff’s challenges to the ALJ’s evaluation of her
RFC lack merit.
Furthermore, based on their review of Plaintiff’s
medical records, two State agency medical consultants determined
that Plaintiff could perform modified light work.
111-18.)
(See Tr. 93-98,
These assessments provide additional support for the RFC
and the ALJ’s determination that Plaintiff does not qualify as
disabled.
Accordingly, the Court should deny Plaintiff’s first
assignment of error.
2.
Plaintiff
next
Medical Opinions
contends
that
the
ALJ
erred
in
his
consideration of the medical opinions of Ms. Wacker and Dr. Tellez.
(See Docket Entry 11 at 6-7.)
Specifically, Plaintiff maintains
that the “ALJ erred in his assessment of Ms. Wacker’s evaluation”
because “[h]e claimed to give her opinion on the results of the FCE
little weight reasoning that the record supported his RFC for a
24
reduced range of light work and because she was not an acceptable
medical source.” (Id. at 7.) Plaintiff further argues that “[t]he
ALJ
[reversibly]
erred
by
not
even
mentioning,
much
less
considering and weighing, the opinion of Dr. Tellez, [Plaintiff’s]
treating neurologist, that she was disabled from working due to her
MS symptoms including gait disturbance, poor balance, decreased
sensation and weakness.”
(Id. at 6.)
In response, Defendant
disputes Plaintiff’s contentions regarding Ms. Wacker’s opinion and
urges that the ALJ committed harmless error in failing to discuss
Dr. Tellez’s opinion.
(Docket Entry 14 at 8-11.)11
Plaintiff’s
contentions lack merit.
i.
Applicable Standards
Under the so-called treating physician rule, an ALJ generally
must afford controlling weight to the opinion of a treating source
as to the nature and severity of a claimant’s impairment, on the
ground that treating sources “provide a detailed, longitudinal
11
“The federal ‘harmless-error’ statute, now codified at 28 U.S.C. § 2111,
tells courts to review cases for errors of law ‘without regard to errors’ that
do not affect the parties’ ‘substantial rights.’” Shinseki v. Sanders, 556 U.S.
396, 407 (2009). Moreover, the United States Supreme “Court has said that the
party that seeks to have a judgment set aside because of an erroneous ruling
carries the burden of showing that prejudice resulted.” Id. at 409 (internal
quotation marks omitted).
“[C]ourts have correlated review of ordinary
administrative proceedings to appellate review of civil cases in this respect.
Consequently, the burden of showing that an error is harmful normally falls upon
the party attacking the agency’s determination.” Id. (citing with approval,
inter alia, Nelson v. Apfel, 131 F.3d 1228, 1236 (7th Cir. 1997), a Social
Security disability case).
Consistent with Sanders, the Fourth Circuit
repeatedly has recognized the applicability of the harmless error doctrine in the
Social Security disability context. See Mascio v. Colvin, 780 F.3d 632, 636-37,
639 (4th Cir. 2015); Garner v. Astrue, 436 F. App’x 224, 226 n.* (4th Cir. 2011);
Morgan v. Barnhart, 142 F. App’x 716, 723 (4th Cir. 2005); Camp v. Massanari, 22
F. App’x 311, 311 (4th Cir. 2001).
25
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).12
The rule
also recognizes, however, that not all treating sources or treating
source opinions deserve such deference.
See Johnson v. Barnhart,
434 F.3d 650, 654 n.5 (4th Cir. 2005) (“The ALJ is not required in
all cases to give the treating physician’s opinion greater weight
than other evidence . . . .”).
To
begin
relationship
§
with,
may
the
nature
and
the
weight
temper
404.1527(d)(2)(ii).
Further,
a
extent
of
each
afforded.
treating
treatment
20
source’s
C.F.R.
opinion
controls only if well-supported by “medical signs and laboratory
findings” and consistent with the other substantial evidence in the
record.
opinion
20 C.F.R. § 404.1527(d)(2)-(4).
is
not
supported
by
clinical
“[I]f a physician’s
evidence
or
if
it
is
inconsistent with other substantial evidence, it should be accorded
significantly less weight.”
270 F.3d at 178.
Craig, 76 F.3d at 590; accord Mastro,
Finally, opinions regarding issues reserved to
the Commissioner, regardless of source, do not receive controlling
12
Effective March 26, 2012, a re-codification moved the treating physician rule
to 20 C.F.R. § 404.1527(c)(2), but without substantive change. See 77 Fed. Reg.
10651–10657 (Feb. 23, 2012). Given that all material events in this action
preceded this non-substantive amendment, the undersigned will use the pre-March
26, 2012 citations.
26
weight.
See 20 C.F.R. § 404.1527(e); see also Morgan v. Barnhart,
142 F. App’x 716, 722 (4th Cir. 2005) (“While the ALJ must give a
treating physician’s medical opinions special weight in certain
circumstances, the ALJ is under no obligation to give a treating
physician’s legal conclusions any heightened evidentiary value.”
(emphasis in original; citation omitted)).
Moreover, physical therapists do not qualify as “acceptable
medical
sources”
under
the
regulations.
See
20
C.F.R.
§ 404.1513(a); see also 20 C.F.R. § 404.1513(d)(1) (defining
“[o]ther sources” as, inter alia, “[m]edical sources not listed in
paragraph (a) of this section”).
Accordingly, although the ALJ
must consider a physical therapist’s medical opinion in assessing
a claimant’s impairments and RFC, that medical opinion, as a
general
proposition,
does
not
warrant
controlling
weight.
Turberville v. Colvin, No. 1:11CV262, 2014 WL 1671582, at *6
(M.D.N.C.
Apr.
23,
2014),
recommendation
adopted,
slip
op.
(M.D.N.C. May 15, 2014); see also Corson v. Astrue, 601 F. Supp. 2d
515, 531-32 (W.D.N.Y. 2009) (observing that “physical therapists’
opinions are not medical opinions” under the regulations and that
physical therapists’ opinions do not “require recognition and
weight by the Commissioner equal to a medical doctor”).
Nevertheless, the ALJ must still evaluate the medical opinions
of “other sources” and sufficiently indicate and explain the weight
that the ALJ affords such opinions.
27
See 20 C.F.R. § 404.1527(d);
Social Security Ruling 96–5p, Medical Source Opinions on Issues
Reserved to the Commissioner, 1996 WL 374183, at *5 (July 2, 1996)
(the “SSR 96-5p”) (noting that ALJs “must weigh medical source
statements . . . [and] provid[e] appropriate explanations for
accepting or rejecting such opinions”).
Similarly, the ALJ cannot
“simply . . . ignore a treating physician’s legal conclusions, but
must instead ‘evaluate all the evidence in the case record to
determine the extent to which the [treating physician’s legal
conclusion] is supported by the record.’”
Morgan, 142 F. App’x at
722 (alteration in original) (quoting SSR 96-5p, 1996 WL 374183, at
*3).
However, “[a]s a general rule, [courts] have held that an
ALJ’s failure to adequately explain his factual findings is not a
sufficient reason for setting aside an administrative finding where
the record supports the overall determination.”
Scott ex rel.
Scott v. Astrue, 529 F.3d 818, 822 (8th Cir. 2008) (internal
quotation marks omitted); see also Ngarurih v. Ashcroft, 371 F.3d
182, 190 n.8 (4th Cir. 2004) (“While the general rule is that an
administrative order cannot be upheld unless the grounds upon which
the agency acted in exercising its powers were those upon which its
action can be sustained, reversal is not required where the alleged
error clearly had no bearing on the procedure used or the substance
of the decision reached.” (citation and internal quotation marks
omitted)); Stewart v. Apfel, No. 98-1785, 182 F.3d 909 (table),
1999 WL 485862, at *5 (4th Cir. July 12, 1999) (concluding that,
28
although “the ALJ’s report completely fail[ed] to mention the
evaluation by [a medical source]” and “the ALJ . . . was not as
thorough as he could have been,” the district court properly
concluded that substantial evidence supported the ALJ’s decision
and the ALJ adequately “explained why he came to the conclusion
that he did”); Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)
(“No principle of administrative law or common sense requires us to
remand a [Social Security] case in quest of a perfect opinion
unless there is reason to believe that the remand might lead to a
different result.”).
ii.
Ms. Wacker’s Opinion
As an initial matter, contrary to Plaintiff’s contentions, the
ALJ did not discount Ms. Wacker’s opinion by “reasoning that the
record supported his RFC for a reduced range of light work” (Docket
Entry 11 at 7).
Instead the ALJ discounted Ms. Wacker’s opinion
that “[Plaintiff] could not sustain a sedentary exertion for an
eight-hour day or 40-hour workweek” because “[t]he longitudinal
clinical and diagnostic evidence of record, discussed above, did
not support
this
opinion.”
supports this finding.
(Tr. 23.)
Substantial
evidence
For instance, Ms. Wacker based her opinion
that Plaintiff lacked the capacity for sedentary work on Ms.
Wacker’s assessment that Plaintiff’s “[d]ynamic strength portion
scored at 5 pounds,” generating a “5 pound limit.”
(Tr. 1161.)
In
reaching this conclusion, Ms. Wacker found that, on a “[b]rief
29
musculoskeletal screen,” Plaintiff’s “gross motor strength is in
the 3+/5 range.”
(Tr. 1162.)
This finding contradicts Dr.
Tellez’s assessment of Plaintiff’s strength, which he evaluated at
a low point, immediately following her alleged onset date, of
“4+/5” in her “[r]ight upper extremity” and “4-/5” in her “[r]ight
lower extremity” “with normal power and tone” in her “[l]eft sided
limbs” (Tr. 345 (emphasis omitted)), but otherwise deemed normal
throughout the relevant period (even following Plaintiff’s pseudo
exacerbation in February 2010) (see Tr. 798, 856, 866, 985, 988).13
Moreover, multiple medical records indicate that Plaintiff
suffered no muscle weakness in the relevant period.
878, 889, 893, 1040, 1061.)
(See Tr. 658,
In addition, Ms. Wacker opined that
Plaintiff could not sustain a sedentary level of work because
“[Plaintiff] became easily fatigued with dizziness interfering with
completion of task often.”
(Tr. 1161.)
Yet, medical records
reveal that during the relevant period, Plaintiff repeatedly denied
fatigue (see Tr. 658, 874, 878, 881, 885, 889, 893, 1040, 1044,
1048, 1052), dizziness (see Tr. 657-58, 678, 877-78, 881, 884, 88889, 892, 1056-57), and exercise intolerance (see Tr. 658, 881, 885,
889, 893).
Accordingly, substantial evidence supports the ALJ’s
13
Given their proximity to Plaintiff’s FCE on June 15, 2010, Dr. Tellez’s May
20, 2010 and August 19, 2010 examinations of Plaintiff are particularly
noteworthy: in both examinations, Dr. Tellez found that Plaintiff had “normal
tone, strength and bulk in all extremities and strength: extremities 5/5.” (Tr.
856, 985.) Similarly, on May 7, 2010, and July 2, 2010, Dr. Chintalapudi at
Sandhills Neurologists found that Plaintiff had “normal tone, strength and bulk
in all extremities and strength: extremities 5/5.” (Tr. 859, 982.)
30
finding that Ms. Wacker’s opinion contradicted “[t]he longitudinal
clinical and diagnostic evidence of record.”
(Tr. 23.)
Nevertheless, Plaintiff contends that the ALJ reversibly erred
in discounting Ms. Wacker’s opinion because she was a physical
therapist.
(Docket Entry 11 at 7.)
In evaluating Ms. Wacker’s
opinion, the ALJ noted that “a physical therapist is not an
acceptable medical source” and stated that “[o]nly acceptable
medical sources can give medical opinions.”
(Tr. 23.)
The ALJ’s
failure to explicitly address each of the factors of 20 C.F.R.
§ 404.1527(d) constitutes harmless error.
In rendering his decision, the ALJ stated that he “considered
opinion evidence in accordance with the requirements of 20 CFR
404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.”
(Tr. 19.)
Thus,
in assigning “little weight” to Ms. Wacker’s opinion (Tr. 23), the
ALJ implicitly considered the 20 C.F.R. § 404.1527(d) factors
(i.e., examining relationship, treatment relationship, including
“[l]ength of the treatment relationship and the frequency of
examination,” supportability, consistency, specialization, and any
“[o]ther factors . . . which tend to support or contradict the
opinion,”
id.).
See
Reid,
769
F.3d
at
865
(“[O]ur
general
practice, which we see no reason to depart from here, is to take a
lower tribunal at its word when it declares that it has considered
a matter” (alteration in original) (quoting Hackett v. Barnhart,
395 F.3d 1168, 1173 (10th Cir. 2005))). Ms. Wacker administered an
31
FCE to Plaintiff on June 15, 2010, and based her opinion regarding
Plaintiff’s capacities entirely on Plaintiff’s results from that
FCE.
(See Tr. 1161-71.)
The ALJ’s failure to more thoroughly
address the factors supporting his discounting of Ms. Wacker’s
opinion
regarding
this
one-time
endeavor
does
not
constitute
reversible error in light of the substantial evidence supporting
both (1) his conclusion that “[t]he longitudinal clinical and
diagnostic evidence of record, discussed above, did not support
[her] opinion” (Tr. 23), and (2) his decision to deny benefits.
See Fitzgerald v. Colvin, No. 2:12cv78, 2013 WL 6178563, at *5
(E.D.N.C. Nov. 25, 2013) (“To the extent [the plaintiff] alleges
that the ALJ should have more thoroughly explained the weight given
to [certain medical source] opinions, a district court must affirm
the decision of an ALJ who ‘was not as thorough as he could have
been’ if it finds, after reviewing the record as a whole, that
substantial evidence supports the decision.” (quoting Stewart, 1999
WL 485862, at *5)).
iii.
Dr. Tellez’s Opinion
Finally, Plaintiff contends that the ALJ committed reversible
error by failing to consider Dr. Tellez’s August 31, 2009 opinion
that Plaintiff qualified as disabled. (See Docket Entry 11 at 6-7;
see also Docket Entry 15 at 1-2.)
According to Plaintiff, the ALJ
failed to consider “the opinion of Dr. Tellez[] . . . that
[Plaintiff] was disabled from working due to her MS symptoms
32
including gait disturbance, poor balance, decreased sensation and
weakness.”
(Docket Entry 11 at 6 (citing Tr. 344-46).)
In
response, Defendant maintains that, at most, the ALJ committed
harmless error by not discussing Dr. Tellez’s statement that “I did
advise [Plaintiff] not to work at this point as she is quite
disabled” (Tr. 346).
(See Docket Entry 14 at 8-9.)14
Plaintiff’s
contention lacks merit.
As a preliminary matter, Plaintiff errs in contending that the
ALJ failed to consider Dr. Tellez’s August 31, 2009 opinion.
As
noted previously, the ALJ stated that he considered “the entire
record” in rendering his decision.
(Tr. 18 (emphasis omitted).)
Dr. Tellez’s August 31, 2009 medical report constitutes the first
three pages of Exhibit 3F.
(See Tr. 344-46.)
Accordingly, absent
evidence indicating otherwise (which, again, Plaintiff has not
14
In so contending, Defendant asserts that the ALJ’s evaluation of a similar
statement by Plaintiff’s treating psychiatrist, Dr. Mandell (see Tr. 23),
rendered harmless his failure to address Dr. Tellez’s statement. (See Docket
Entry 14 at 8-9 (relying on Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010)).)
Although ambiguous, Dr. Mandell’s assessment arguably (and logically) related to
Plaintiff’s mental health.
(See Tr. 736 (documenting that, in response to
Plaintiff’s depression, “[Dr. Mandell] recommended a medical leave of absence
from work for the next few days”); see also Tr. 23 (concluding that “the
objective evidence, including Dr. Mandell’s own treatment records[,] showed
stabilization and some improvement in [Plaintiff’s] symptoms and level of
functioning after this opinion was offered”).) As one doctor’s assessment that
a claimant qualifies as disabled mentally does not equate to another doctor’s
assessment that a claimant qualifies as disabled physically, the ALJ’s
consideration of Dr. Mandell’s opinion does not render harmless his failure to
address Dr. Tellez’s opinion. See generally Greek v. Colvin, 802 F.3d 370, 376
(2d Cir. 2015) (“The district court’s reliance on Zabala was misplaced. In
Zabala, the ALJ failed to consider a second, virtually identical opinion by the
same treating physician. Here, by contrast, the only other evidence that the ALJ
might have considered and rejected was testimony from non-treating physicians and
lay witnesses about the nature of [the plaintiff’s] condition. Consideration of
such lay testimony is not a substitute for proper consideration of a treating
physician’s medical opinion.”).
33
identified), the Court must accept that the ALJ considered Dr.
Tellez’s opinion in evaluating Plaintiff’s RFC. See Reid, 769 F.3d
at 865. Moreover, the record supports that the ALJ considered this
opinion.
For example, the ALJ cited Exhibit 3F multiple times in
his decision (see Tr. 20-22), and explicitly relied on findings
from Dr. Tellez’s August 31, 2009 report in evaluating Plaintiff’s
upper extremity strength, tone, and bulk (see Tr. 20; see also Tr.
345).
In
addition,
at
the hearing,
Plaintiff’s
counsel
and
Plaintiff discussed Dr. Tellez’s opinion:
[Counsel:] “Has Dr. Tellez indicated to you anything
about his opinion about your ability to work?
[Plaintiff:] He’s told me that he didn’t see how I could
with as much as I was out of work.
(Tr. 48-49.)
Accordingly, Plaintiff has not shown that the ALJ
failed to consider Dr. Tellez’s August 31, 2009 opinion.
Plaintiff correctly maintains that the ALJ failed to discuss
Dr. Tellez’s August 2009 opinion that Plaintiff “is quite disabled”
(Tr. 346).
opinion.
However, Plaintiff
overstates
the
scope
of
this
(See Docket Entry 11 at 6 (asserting that Dr. Tellez
opined “that [Plaintiff] was disabled from working due to her MS
symptoms
sensation
including
and
gait
disturbance,
weakness”).)
The
poor
seventh
balance,
entry
on
decreased
a
list
of
recommendations in Dr. Tellez’s August 31, 2009 medical report
states in its entirety:
“7. I did advise the patient not to work
at this point as she is quite disabled.”
(Tr. 346.)
Thus,
contrary to Plaintiff’s contention, Dr. Tellez did not specifically
34
connect his assessment that Plaintiff “is quite disabled” to any
particular multiple sclerosis symptoms.
Nor did Plaintiff connect
Dr. Tellez’s opinion to any specific multiple sclerosis symptoms at
the hearing when she testified that Dr. Tellez “told [her] that he
didn’t see how [she] could [work] with as much as [she] was out of
work.”
(Tr. 49.)
Furthermore, at that hearing, the ALJ asked
Plaintiff’s “[c]ounsel, are there any specific restrictions or
limitations that are put on [Plaintiff] by any of the treating
physicians?”
(Tr. 63.)
restrictions existed.
Plaintiff’s counsel stated that no such
(See id. (“Not that I saw, Your Honor.”).)
Under these circumstances, Dr. Tellez’s opinion that Plaintiff “is
quite disabled” does not qualify as a “medical opinion” generally
entitled to deference.
See 20 C.F.R. § 404.1527(a)(2) (defining
“medical opinions” as “statements . . . that reflect judgments
about the nature and severity of [the claimant’s] impairment(s),
including [the claimant’s] symptoms, diagnosis and prognosis, what
[the
claimant]
can
still
do
despite
impairment(s),
and
[the
claimant’s] physical and mental restrictions”).
Instead, Dr. Tellez’s statement constitutes a legal opinion to
which the ALJ owed no deference.
& (e)(3).
See 20 C.F.R. §§ 404.1527(e)(1)
This statement occurred in August 2009, ten days after
Plaintiff’s alleged onset date.
(See Tr. 13, 346.)
The ALJ
considered the medical evidence from that report in analyzing
Plaintiff’s impairments.
(See Tr. 20 (“After the alleged onset
35
date in August 2009, Sandhills Neurologists treatment records
documented slightly reduced right upper extremity strength with
normal tone and bulk.”); Tr. 345 (documenting reduced strength);
see also Tr. 21 (“No significant changes were seen on MRIs in
September 2008, June 2009, and August 2009”); Tr. 346 (documenting
that “[b]rain and cervical MRI . . . dated August 19, 2009 did not
show any significant changes as compared with previous images”).)
As
previously
discussed,
substantial
evidence,
including
Dr.
Tellez’s own medical assessments, supports the conclusion that
Plaintiff’s multiple sclerosis improved and stabilized after August
2009.
As such, Plaintiff has not shown prejudicial error from the
ALJ’s failure to discuss Dr. Tellez’s August 2009 statement that
“at this point . . . [Plaintiff] is quite disabled” (Tr. 346).
In sum, the ALJ did not reversibly err in evaluating Ms.
Wacker’s opinion or in omitting a discussion of Dr. Tellez’s August
2009 opinion.
Accordingly, the Court should deny Plaintiff’s
second assignment of error.
III. CONCLUSION
Plaintiff has established no grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
36
Entry
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 13)
be granted, and that judgment be entered for Defendant.
This 2nd day of May, 2016.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
37
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