WILKINS v. COLVIN

Filing 16

MEMORANDUM OPINION AND ORDER. Signed by JUDGE CATHERINE C. EAGLES on 10/14/2014, that the Commissioner's decision finding no disability be AFFIRMED, that the plaintiff's Motion for Judgment on the Pleadings [Doc. 9 ] be DENIED, that the defendant's Motion for Judgment on the Pleadings [Doc. 14 ] be GRANTED, and that this action be DISMISSED with prejudice. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MELINDA GENTRY WILKINS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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1:13-CV-354

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Plaintiff Melinda Gentry Wilkins brought this action to obtain judicial review of a
final decision of the Commissioner of Social Security denying her claim for Disability
Insurance benefits. The parties have filed cross-motions for judgment, and the
administrative record has been certified to the Court for review.
I.

PROCEDURAL HISTORY
Ms. Wilkins filed her application for Disability Insurance Benefits on October 21,

2010, alleging a disability onset date of February 1, 2002. (Tr. at 22, 136-39.)1 After it
was denied, (Tr. at 57-75), Ms. Wilkins requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. at 22, 98-103). After this hearing, the ALJ found
that Ms. Wilkins was not disabled within the meaning of the Act. (Tr. at 22-30.) Ms.
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Transcript citations refer to the Administrative Transcript of Record filed manually with
the Commissioner’s Answer [Doc. 6].

Wilkins appealed this ruling, and, on February 21, 2013, the Appeals Council denied Ms.
Wilkins’ request for review of the decision, thereby making the ALJ’s conclusion the
Commissioner’s final decision for purposes of judicial review. (Tr. at 1-4.)
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).
“[T]he scope of [the court’s] review of [such an 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
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 used the well-established five-step process to evaluate Ms. Wilkins’

disability claim. See Hancock, 667 F.3d at 472. The ALJ found at step one that Ms.
Wilkins had not engaged in “substantial gainful activity” from her alleged onset date
through her date last insured. At step two, the ALJ further determined that Ms. Wilkins
suffered from the following severe impairments: degenerative disc disease, hypertension,
osteoarthritis, and obesity. (Tr. at 24.) The ALJ found at step three that none of these
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impairments met or equaled a disability listing. Accordingly, the ALJ assessed Ms.
Wilkins’ RFC and determined that she could perform medium work with additional
postural limitations. (Tr. at 25.) At step four, the ALJ found that Ms. Wilkins could
return to her past relevant work as a sewing machine operator. (Tr. at 29.) Alternatively,
the ALJ found at step five that Ms. Wilkins could perform other jobs that exist in
significant numbers in the national economy and therefore was not disabled. (Tr. at 30.)
IV.

CONTENTION
Ms. Wilkins contends that the ALJ erred in two ways. First, she claims that the

ALJ erred in failing to recontact Dr. Thomas Long, Jr., who, several years before Ms.
Wilkins’ alleged onset date, indicated on a form to her employer that she was
permanently limited to lifting no more than 20 pounds. Second, Ms. Wilkins makes
several related contentions directed towards how the ALJ evaluated her credibility.
V.

DISCUSSION
A.

Treating Physician Opinion

Ms. Wilkins first challenges the ALJ’s treatment of a one-page form dated June 9,
1999 and signed by Ms. Wilkins’ treating physician, Dr. Long. The form indicates Ms.
Wilkins’ work restrictions at that time, including permanent unspecified limitations in
standing, bending, twisting, pushing, and pulling, and no lifting of over 20 pounds. Dr.
Long listed “Ruptured Disc in Back” as the plaintiff’s underlying diagnosis. (Tr. at 391.)
The ALJ gave this opinion no weight because:
[t]he opinion expressed is conclusory, providing no explanation of the
evidence relied on in forming that opinion. The claimant did not provide
any medical evidence of record that was concurrent with the statement, thus
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giving it no probative value and the undersigned gives it no weight. The
restriction of essentially light work due to a ruptured disc in her back was
not borne out in later x-rays and magnetic resonance imaging scans.
(Tr. at 28.) Ms. Wilkins agrees that Dr. Long’s opinion was conclusory and inadequate
and contends that this failing created an affirmative duty on the part of the ALJ to recontact Dr. Long.
A hearing officer “has a duty to explore all relevant facts and inquire into the
issues necessary for adequate development of the record, and cannot rely only on the
evidence submitted by the claimant when that evidence is inadequate.” Cook v. Heckler,
783 F.2d 1168, 1173 (4th Cir. 1986); see also Kersey v. Astrue, 614 F. Supp. 2d 679,
693-94 (W.D. Va. 2009) (“The regulations require only that the medical evidence be
‘complete’ enough to make a determination regarding the nature and severity of the
claimed disability, the duration of the disability and the claimant’s residual functional
capacity.” (citing 20 C.F.R. §§ 404.1513(e), 416.913(e)); France v. Apfel, 87 F. Supp. 2d
484, 490 (D. Md. 2000) (“[T]he ALJ does not otherwise have an obligation to obtain
additional information if the record is adequate to make a determination regarding a
disability claim.”). “[T]hat does not mean that ‘a remand is warranted any time the
claimant alleges that the ALJ has neglected to complete the record.’” Hood v. Astrue,
No. SKG-08-2240, 2009 WL 4944838, at *8 (D. Md. Dec. 14, 2009) (unpublished)
(quoting Brown v. Shalala, 44 F.3d 931, 935 n.9 (11th Cir. 1995)). Instead,
[t]he Fourth Circuit has held that a case should be remanded for failure to
develop the administrative record “[w]here the ALJ fails in his duty to fully
inquire into the issues necessary for adequate development of the record,
and such failure is prejudicial to the claimant . . .” Marsh v. Harris, 632
F.2d 296, 300 (4th Cir. 1980)(emphasis added). “Prejudice can be
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established by showing that additional evidence would have been produced
. . . and that the additional evidence might have led to a different decision.”
Ripley v. Chater, 67 F.3d 552, 557 n. 22 (5th Cir. 1995). If a plaintiff fails
to show that he/she was prejudiced by the ALJ’s failure to develop the
record, remand is not warranted.
Zook v. Commissioner of Social Sec., No. 2:09cv109, 2010 WL 1039456, at *4 (E.D. Va.
Feb. 25, 2010)(unpublished)(brackets and ellipses in original).
In the case of medical evidence, the hearing officer must develop a plaintiff’s
complete medical history for at least the twelve months preceding the month of that
plaintiff’s application and must assist the plaintiff in obtaining medical reports from his
doctors. 20 C.F.R. § 404.1512(d). Development of the record may include ordering
consultative examinations “when evidence as a whole is insufficient to allow us to make
a determination or decision on your claim.” 20 C.F.R. § 404.1519a(b).
Dr. Long’s 1999 opinion preceded both Ms. Wilkins’ disability application date,
October 21, 2010, and her alleged onset date, February 1, 2002, by far more than the
twelve-month period the regulations require an ALJ to develop. Ms. Wilkins continued
her treatment relationship with Dr. Long and other primary care providers at Roxboro
Medical Associates throughout the time period at issue here, and the record contains
seventy-five pages of medical records from this provider. (See Tr. at 264-339.) The
record also contains the results of a lumbar spine MRI performed on September 9, 2004,
(Tr. at 180-81, 188-90, 363-64), and regular examinations to determine if she had
neurologic deficits in terms of strength, reflexes, or sensation upon exam during the time
period at issue. (See Tr. at 185-86, 193, 220-221, 228, 230, 231, 235, 248, 250, 253.)
Under these circumstances, the record was not incomplete. See Skarbek v. Barnhart, 390
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F.3d 500, 504 (7th Cir. 2004) (“An ALJ need recontact medical sources only when the
evidence received is inadequate to determine whether the claimant is disabled.”).
B.

Credibility

Ms. Wilkins challenges the ALJ’s finding that her statements regarding the
intensity, persistence, and limiting effects of her symptoms were not entirely credible. In
particular, Ms. Wilkins contends that the ALJ failed to correctly apply the credibility
standards set forth in Craig v. Chater and 20 C.F.R. § 404.1529.
Craig provides a two-part test for evaluating a claimant’s statements about
symptoms. “First, there must be objective medical evidence showing ‘the existence of a
medical impairment(s) which results from anatomical, physiological, or psychological
abnormalities and which could reasonably be expected to produce the pain or other
symptoms alleged.’” 76 F.3d at 594 (citing 20 C.F.R. §§ 416.929(b) & 404.1529(b)). If
the ALJ determines that such an impairment exists, the second part of the test then
requires her to consider all available evidence, including the claimant’s statements about
her pain, in order to determine whether the claimant is disabled. Id. at 596. While the
ALJ must consider a claimant’s statements and other subjective evidence at step two, she
need not credit them to the extent they conflict with the objective medical evidence or to
the extent that the underlying impairment could not reasonably be expected to cause the
symptoms alleged. Id. Where the ALJ has considered the relevant factors and has heard
the claimant’s testimony and observed her demeanor, the ALJ’s credibility determination
is entitled to deference. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984).

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Ms. Wilkins characterizes certain words in the ALJ’s decision as “boilerplate” and
cites Bjornson v. Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012), for the proposition that
use of such language is error. All district courts in North Carolina have rejected Ms.
Wilkins’ interpretation of Bjornson. Mascio v. Colvin, No. 2:11-CV-65-FL, 2013 WL
3321577, at *3 (E.D.N.C. July 1, 2013) (unpublished); see also Knott v. Colvin, No.
1:13CV332, 2014 WL 2453302, at *7 (M.D.N.C. June 2, 2014) (unpublished); Medley v.
Astrue, No. 3:12-CV-311-MOC-DCK, 2013 WL 1858559, at *6 (W.D.N.C. Mar. 28,
2013) (unpublished). The Court finds the reasoning of these decisions persuasive.
Ms. Wilkins next argues that if a claimant’s pain testimony is supported by
substantial evidence, it must be accorded great weight. In the decision, the ALJ
thoroughly reviewed and catalogued the reasons she did not credit Ms. Wilkins’
complaints of pain, which were certainly not uncontradicted. (Tr. 26-29, 43-44, 46-49).
The ALJ’s credibility determination is supported by substantial evidence and is entitled to
deference; there was no error.
Third, Ms. Wilkins contends the ALJ erred in not individually discussing the
factors set forth in 20 C.F.R. § 404.1529 and SSR 96-7p when evaluating her credibility.
She cites no case which requires the ALJ to go through each factor point by point. The
ALJ expressly stated that she had reviewed the evidence in light of these regulations.
(Tr. at 26.) The ALJ also thoroughly discussed the medical evidence and explained her
reasoning. (Tr. 25-29.) This is sufficient.
As a final matter, Ms. Wilkins challenges the ALJ’s finding that Ms. Wilkins’
“testimony of a herniated disc is not supported in her treatment records.” (Tr. at 29.)
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One physician, Steven Winters, did refer to her back injury as a “disc herniation” (Tr. at
188, 190) as opposed to the disc “bulge” noted by other providers. (Tr. at 180, 363.)
This appears to be semantics, as the radiology report itself characterized the problem as a
“bulge.” (Tr. 180.) In records clearly considered by the ALJ, Ms. Wilkins’ orthopedist
found that, although she may have some mild nerve root compromise, her lack of
neurologic deficits upon EMG testing and exam indicate that her low back pain is not
related to such a compromise. (Tr. at 26-28, 363-66.) Her treatment for back pain
thereafter doesn’t even mention bulging discs, much less herniated discs. (Tr. at 366386.) Therefore, any error on this point was harmless.
IT IS THEREFORE ORDERED that the Commissioner’s decision finding no
disability be AFFIRMED, that the plaintiff’s Motion for Judgment on the Pleadings
[Doc. 9] be DENIED, that the defendant’s Motion for Judgment on the Pleadings [Doc.
14] be GRANTED, and that this action be DISMISSED with prejudice.
This the 14th day of October, 2014.

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UNITED STATES DISTRICT JUDGE

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