TURNER v. COLVIN
Filing
20
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/5/2015; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgement (Docket Entry 15 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 17 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MAXINE VICTORIA TURNER,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:13CV00761
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff,
Maxine
Victoria
Turner,
brought
this
action
pursuant to the Social Security Act (the “Act”) to obtain judicial
review of a final decision of Defendant, the Commissioner of Social
Security,
denying
Plaintiff’s
claim
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)
The Court has before it the certified administrative
record (cited herein as “Tr. __”), as well as the parties’ crossmotions for judgment (Docket Entries 15, 17). For the reasons that
follow, the Court should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB and SSI on May 13, 2010
(protective filing date), alleging a disability onset date of
October 9, 2007.
(Tr. 101-07.)
Upon denial of that application
(Tr. 46-47, 49-57), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 58-59).
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr.
29-45.)
By
decision
dated
November
30,
2011,
the
ALJ
determined that Plaintiff was not disabled under the Act. (Tr. 1125.)
On July 10, 2013, the Appeals Council denied Plaintiff’s
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 September 30, 2011.
2.
[Plaintiff] has not engaged in substantial gainful
activity since October 9, 2007, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
osteoarthritis, degenerative joint disease, obesity, a
mood disorder and hypertension, well-controlled with
medication.
. . . .
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 . . . however, she
requires a sit/stand option. Further, she is limited to
simple routine repetitive tasks involving minimal contact
with the public.
. . . .
6.
[Plaintiff] is unable to perform any past relevant work.
. . . .
2
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 October 9, 2007, through the date of
this decision.
(Tr. 16-25 (internal parenthetical citations omitted).)
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
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
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 [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
standard.” Hines, 453 F.3d at 561 (internal brackets and 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, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may be
3
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).
“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 Social Security Commissioner].” 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 [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing 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
4
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)).1
“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,
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. (internal citations omitted).
This sequential evaluation process (“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. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
1
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . 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 (internal citations omitted).
5
(4th Cir. 1999).2
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.’ 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
each of the first three steps, 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,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
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
2
“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 (internal citations omitted).
3
“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.
6
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.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) in formulating the RFC, the ALJ failed to give appropriate
weight to the opinion of Plaintiff’s primary care physician (Docket
Entry 16 at 4-12);
(2) the ALJ erred by failing to define in the RFC how often
Plaintiff would need to alternate between sitting and standing (id.
at 12-15);
(3) the ALJ’s mental RFC, limiting Plaintiff to “simple
routine
repetitive
tasks
involving
4
minimal
contact
with
the
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
the SEP appear to gloss over the fact that an adverse finding against a claimant
on 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.”).
7
public,” does not incorporate his own finding that Plaintiff’s
mental impairments impose a moderate limitation on her ability to
maintain concentration, persistence, and pace (id. at 15-17); and
(4)
the ALJ failed, beyond a summary conclusion, to evaluate
the combined effect of Plaintiff’s impairments on her ability to
work (id. at 17-19).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 18 at 5-12.)
Treating Physician Opinion
In her first issue on review, Plaintiff challenges the ALJ’s
evaluation of the opinions of primary care physician Dr. Jack Todd
Wahrenberger, who concluded that Plaintiff’s impairments disabled
her as of May 26, 2011.
44.)
(Docket Entry 16 at 4-12 (citing Tr. 543-
Contrary to the ALJ’s analysis, Plaintiff asserts that Dr.
Wahrenberger’s opinions reflect consistency both with his own
treatment
notes
and
with
other
medical
evidence
of
record,
including the findings of consultative physician Dr. Louis E. Leff
(Tr. 156-58), and Plaintiff’s own statements on a Function Report
and at the hearing (Tr. 34-36, 39-41, 135).
(Docket Entry 16 at 7-
8.) Plaintiff contends that the ALJ further erred by giving “great
weight” to the state agency non-examining physician’s opinion,
because that physician provided his opinion “before important
evidence
[such
as
Dr.
Wahrenberger’s
8
records
and
disability
opinion]
was
introduced
into
the
record.”
(Id.
at
11.)
Plaintiff’s argument on these points falls short.
The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.
20 C.F.R.
§§ 404.1527(c)(2), 416.927(c) (“[T]reating sources . . . provide a
detailed,
longitudinal
picture
of
[a
claimant’s]
medical
impairment(s) and 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.”).
The rule
also recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
affords
an
opinion.
20
C.F.R.
§§
404.1527(c)(2)(ii),
416.927(c)(2)(ii). Moreover, as subsections (2) through (4) of the
rule describe in great detail, a treating source’s opinion, like
all medical opinions, deserves deference only if well-supported by
medical signs and laboratory findings and consistent with the other
substantial
evidence
in
the
case
record.
§§ 404.1527(c)(2)-(4), 416.927(c)(2)-(4).
opinion
is
not
supported
by
clinical
20
C.F.R.
“[I]f a physician’s
evidence
or
if
it
is
inconsistent with other substantial evidence, it should be accorded
significantly less weight.”
Craig, 76 F.3d at 590 (emphasis
9
added).5
Finally, opinions by physicians regarding the ultimate
issue of disability and other such findings dispositive of a case
do not receive controlling weight because the Commissioner reserves
the authority to render such decisions.
20 C.F.R. §§ 404.1527(e),
416.927(e).
In this case, on October 12, 2011, Dr. Wahrenberger completed
an RFC questionnaire. (See Tr. 543-45.) Dr. Wahrenberger reported
that Plaintiff suffered from “severe osteoarthritis” (Tr. 543) in
her “hips, knees [and] shoulders” (Tr. 545) and, as a result of
that impairment, opined that Plaintiff could perform less than a
full range of sedentary work (including significant limitations on
her ability to stand/walk, sit, lift, push/pull, bend, squat,
crawl, and climb; a need to rest during an eight-hour work day in
excess of standard breaks; and absence from work or inability to
complete a work day in excess of fifteen days per month) (Tr. 54344).
As a result of those limitations, Dr. Wahrenberger concluded
5
According to Plaintiff, “Fourth Circuit precedent requires that the opinion
of a claimant’s treating physician be given great weight and may be disregarded
only if there is persuasive contradictory evidence.” (Docket Entry 16 at 10
(citing Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987); Foster v. Heckler,
780 F.2d 1125, 1130 (4th Cir. 1986); Mitchell v. Schweiker, 699 F.2d 185, 187
(4th Cir. 1983)).)
Plaintiff’s
phrasing of the “treating physician rule,”
however, no longer represents the governing standard. See Stroup v. Apfel, No.
96-1722, 205 F.3d 1334 (table), 2000 WL 216620, at *5 (4th Cir. Feb. 24, 2000)
(unpublished) (“The 1991 regulations supersede the ‘treating physician rule’ from
our prior case law.”); Shrewsbury v. Chater, No. 94-2235, 68 F.3d 461 (table),
1995 WL 592236, at *2 n.5 (4th Cir. Oct. 6, 1995) (unpublished) (“As regulations
supersede contrary precedent, the cases cited by [the plaintiff] defining the
scope of the ‘treating physician rule’ decided prior to 20 C.F.R. § 416 and
related regulations are not controlling.” (internal citation omitted)); accord
Brown v. Astrue, Civil Action No. CBD-10-1238, 2013 WL 937549, at *4 (D. Md. Mar.
8, 2013) (unpublished); Benton v. Astrue, Civil Action No. 0:09-892-HFF-PJG, 2010
WL 3419272, at *1 (D.S.C. Aug. 30, 2010) (unpublished); Pittman v. Massanari, 141
F. Supp. 2d 601, 608 (W.D.N.C. 2001); Ward v. Chater, 924 F. Supp. 53, 55-56
(W.D. Va. 1996).
10
that Plaintiff’s total disability began on May 26, 2011.
(Tr.
544.)
Here, the ALJ’s evaluation of Dr. Wahrenberger’s opinions
complied with the regulatory requirements.
The ALJ assessed Dr.
Wahrenberger’s opinions as follows:
The undersigned has fully considered the conclusion of
Dr. Wahrenberger indicating that [Plaintiff] is disabled.
This opinion that [Plaintiff] is precluded from working
is entitled to little, if any, weight since this
conclusion is not supported by the medical records and is
inconsistent with the record as a whole.
Dr.
Wahrenberger’s own records show that except for some
tenderness and pain [Plaintiff’s] examinations have been
essentially normal with no deformities, cyanosis, edema
or peripheral pulses.
[Plaintiff’s] gait and station
have been normal.
Further, x-rays in June 2011 of
[Plaintiff’s]
wrists
and
hips
showed
only
mild
osteoarthritis and x-rays of the lumbar spine showed only
mild multilevel degenerative disc disease with no erosive
changes. X-rays of the knees showed mild to moderate
tri-compartmental osteoarthritis with no erosive changes,
fracture or dislocation and no joint effusion.
In
addition,
conclusion
that
[Plaintiff]
should
be
considered “disabled” is an issue reserved to the
Commissioner. In sum, the undersigned has resolved all
doubt in [Plaintiff’s] favor and limited her to light
work with a sit/stand option.
(Tr. 22.)
First, the ALJ properly discounted Dr. Wahrenberger’s opinions
in part on the basis that his own treatment notes failed to support
his opinions.
On the date that Dr. Wahrenberger opined that
Plaintiff began her disability, May 26, 2011, Dr. Wahrenberger
examined
Plaintiff
and
noted
“[n]o
misalignment,
asymmetry,
crepitation, defects, tenderness, masses, effusions, decreased
range of motion, instability, atrophy or abnormal strength or tone
11
in the head, neck, spine, ribs pelvis or extremities.”
(Tr. 223.)
He further stated that Plaintiff did not “have any physical exam
stigmata of rheumatoid arthritis” and that Plaintiff “probably has
low back pain and knee pain secondary to her morbid obesity.”
224.)
between
(Tr.
Dr. Wahrenberger only examined Plaintiff three more times
that
initial
examination
and
his
October
12,
2011
“disability” opinion and, on all three occasions, Plaintiff’s
primary complaints did not relate to her arthritis.
(See Tr. 216
(visit on July 11, 2011, with complaints of itching and pain in her
hands, hot flashes, and sinusitis), 210 (visit on September 6,
2011, with complaints of eye irritation secondary to an insect
bite), 205 (examination on September 26, 2011, for routine pap
smear with complaints of depression, hot flashes, an infected tooth
and feeling “under the weather” after a flu shot).)
Additionally,
Dr. Wahrenberger noted that x-rays revealed only “moderately severe
osteoarthritis in [Plaintiff’s] hips, knees, and wrists.” (Tr. 207
(emphasis added); see also Tr. 480-82.) Moreover, the record lacks
any support for Dr. Wahrenberger’s opinion that Plaintiff suffered
severe
osteoarthritis
in
her
shoulders.
(See
Tr.
545.)
Substantial evidence thus supports the ALJ’s decision to discount
Dr. Wahrenberger’s opinions in part because the doctor’s own
treatment records contradicted those opinions.6
6
Contrary to Plaintiff’s argument (see Docket Entry 16 at 7), Dr.
Wahrenberger’s prediction that Plaintiff may need hip and knee replacement “in
the future” (Tr. 218) does not provide support for the severity of Plaintiff’s
osteoarthritis during the relevant time period in this case.
At most, his
12
Second, in accord with the regulations, the ALJ properly found
Dr.
Wahrenberger’s
opinions
inconsistent
with
other
medical
evidence of record, such as diagnostic tests showing only mild to
moderate degenerative changes in Plaintiff’s hips, knees, wrists,
and lumbar spine (Tr. 480-82, 488), and generally unremarkable
physical examinations which showed some tenderness in Plaintiff’s
knees and
spine but good range of motion, full strength, normal
sensation, no effusion, and normal gait and posture (Tr. 223-24,
234, 272, 292).
record
involve
Notably, the majority of medical notes in the
treatment
for
primary
complaints
other
than
arthritis. (See Tr. 216-18 (insect bite), 233-34 (flu symptoms and
chest
pain),
245-46
(abdominal
pain),
249-50
(urinary
incontinence), 254-55 (depression), 271-71 (annual physical), 28384 (headaches, depression, and chest pain), 306-07 (abdominal pain
and depression), 313-14 (annual physical with no complaints), 33738 (allergic rhinitis and hot flashes), 341 (depression and hot
flashes), 344 (cold symptoms), 348-49 (pharyngitis), 353-54 (hot
flashes and ear pain), 369-70 (chest pain and shortness of breath),
372-73
(sinusitis),
375
(headaches
and
gastrointestinal
complaints), 380-81 (dizziness from elevated blood pressure), 38789 (abdominal pain and menopausal symptoms).) Substantial evidence
statement acknowledges that osteoarthritis constitutes a progressive disease that
will likely continue to worsen into the future.
13
thus supports the ALJ’s decision to discount Dr. Wahrenberger’s
opinions in part as inconsistent with other evidence of record.7
Notably, the consultative examination by Dr. Leff, relied on
by
Plaintiff,
opinion.
does
not
support
Dr.
Wahrenberger’s
disability
Although Dr. Leff detected puffiness in the joints of
Plaintiff’s hands, partially normal grip strength, decreased knee
range of motion, and an inability to squat (Tr. 158), he did not
offer any opinion regarding functional limitations arising from
Plaintiff’s impairments (Tr. 156-58).
Dr. Leff’s conclusions thus
do not serve to negate the ALJ’s conclusion that Dr. Wahrenberger’s
extreme limitations lacked consistency with other medical evidence
of record.
Similarly, Plaintiff’s statements on the Disability
Report
at
and
the
hearing
which
suggest
a
greater
level
of
impairment than the RFC (see Tr. 34-36, 39-41, 135) do not impact
the validity of the ALJ’s conclusions regarding Dr. Wahrenberger.
The ALJ evaluated Plaintiff’s subjective complaints and credibility
in accord with the regulations, and found such complaints only
partially credible.
(Tr. 19; see also 20 C.F.R. §§ 404.1529,
416.929.)
Finally, Plaintiff’s argument that the ALJ erred in giving
great weight to the opinion of state agency consultative physician
Dr. Michael J. Niemiec lacks merit.
7
Dr. Niemiec determined that
The ALJ also correctly discounted Dr. Wahrenberger’s opinion that Plaintiff’s
impairments disabled her as an issue reserved to the Commissioner. (Tr. 22; see
also 20 C.F.R. §§ 404.1527(e), 416.927(e).)
14
Plaintiff retained the RFC to perform light work with occasional
climbing, balancing, stooping, kneeling, crouching, and crawling.
(Tr. 174-80.) Plaintiff contends that Dr. Niemiec’s opinion merits
little weight because he offered it before the record contained Dr.
Wahrenberger’s medical records and disability opinion.
(Docket
Entry 16 at 11-12 (citing Morales v. Apfel, 225 F.3d 310, 319-20
(3d Cir. 2000); Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir.
1995), and Social Security Ruling 96-6p, Policy Interpretation
Ruling Titles II and XVI: Consideration of Administrative Findings
of Fact by State Agency Medical and Psychological Consultants and
Other Program Physicians and Psychologists at the Administrative
Law Judge and Appeals Council Levels of Administrative Review;
Medical Equivalence, 1996 WL 374180 (Jul. 2, 1996) (“SSR 96-6p”)).)
The
two
non-binding
decisions
primarily
relied
on
by
Plaintiff, Morales and Frankl, do not support an unequivocal ban on
an ALJ relying on a non-examining state agency physician’s opinion
when offered before the record’s completion. In Morales, the court
made clear that ALJ reliance on state agency non-examining opinions
only constitutes error when the ALJ fails to resolve a conflict
with
other
evidence
or
when
the
overwhelmed by other evidence.”
the
ALJ
explained
conflicting
why
opinion
state
agency
opinion
Morales, 225 F.3d at 320.
he
did
and,
as
not
credit
discussed
Dr.
“is
Here,
Wahrenberger’s
above,
far
from
“overwhelming” Dr. Niemiec’s opinion, the medical evidence post-
15
dating Dr. Niemiec’s opinion provides further support for his
opinion.
Similarly,
in
Frankl,
the
plaintiff
suffered
a
deterioration in his condition after the non-examining physician’s
RFC assessment.
Frankl, 47 F.3d at 938-39.
In this case, the
record establishes no such deterioration in Plaintiff’s condition
after Dr. Niemiec’s August 4, 2010 assessment.8
Numerous
district
court
cases
within
the
Fourth
Circuit
similarly reflect the view that ALJ reliance on non-examining state
agency physicians’ RFC assessments does not constitute error so
long as such opinions find support in the entire record.
See,
e.g., Thacker v. Astrue, 2011 WL 7154218, at *6 (W.D.N.C. Nov. 28,
2011) (unpublished) (“The fact that the state agency physician did
not have access to the entire evidentiary record - because the
record
was
incomplete
at
the
time
of
the
assessment
-
is
inconsequential as the ALJ considered the entire evidentiary record
and substantial evidence supports his determination.
Moreover,
there is nothing in the additional medical evidence subsequently
submitted by Plaintiff to indicate that she possessed limitations
8
Indeed, SSR 96-6p recognizes that ALJ reliance on state agency opinions
depends on their consistency with evidence subsequently received by the ALJ and
Appeals Council. See SSR 96-6p, 1996 WL 374180, at *2 (recognizing that “the
opinions of State agency medical and psychological consultants and other program
physicians and psychologists can be given weight only insofar as they are
supported by evidence in the case record, considering such factors as the
supportability of the opinion in the evidence including any evidence received at
the administrative law judge and Appeals Council levels that was not before the
State agency, the consistency of the opinion with the record as a whole,
including other medical opinions, and any explanation for the opinion provided
by the State agency medical or psychological consultant or other program
physician or psychologist”) (emphasis added).
16
beyond light work.” (internal citation omitted)); Bryant v. Astrue,
No. 3:08CV719, 2009 WL 6093969, at *9 & n.11 (E.D. Va. Jul. 15,
2009) (unpublished) (affirming ALJ’s decision to give non-examining
state agency consultants’ assessment great weight as “consistent
with the actual medical findings and conservative treatment of the
claimant’s treating physicians, and with [the claimant’s] admitted
activities of daily living” even though such consultants “did not
have the opportunity to observe the claimant or the opportunity to
consider additional evidence submitted subsequent to their review
of the record”); Bracey v. Astrue, No. 5:07-CV-265-FL, 2009 WL
86572, at *3 (E.D.N.C. Jan. 6, 2009) (unpublished) (finding no
error in ALJ’s reliance on state agency consultants’ opinions where
“treatment notes and clinical findings . . . submitted after the
[consultants’]
assessments
indicate[d]
similar
complaints
and
assessments as those reviewed by the . . . consultants” and noting
that the ALJ considered the additional evidence, which did “not
demonstrate a marked change for the worse in [the] plaintiff’s
health”).
In sum, substantial evidence supports the ALJ’s decision to
discount the opinions of Dr. Wahrenberger.
2.
Sit/Stand Option
Next, Plaintiff asserts that the ALJ erred by failing to
specify in the RFC assessment how frequently Plaintiff would need
to alternate between sitting and standing. (Docket Entry 16 at 12-
17
15.)
According to Plaintiff, that error has significance because
a claimant who “must alternate between sitting and standing” cannot
perform
“either
the
prolonged
sitting
contemplated
in
the
definition of sedentary work . . . or the prolonged standing or
walking contemplated for most light work.”
(Id. at 13 (citing
Social Security Ruling 83-12, Titles II and XVI: Capability to Do
Other
Work
–
the
Medical-Vocation
Rules
as
a
Framework
for
Evaluating Exertional Limitations Within a Range of Work or Between
Ranges of Work, 1983 WL 31253, at *4 (1983)).)
Thus, Plaintiff
argues, if the frequency with which she must alternate sitting and
standing more closely resembles sedentary work than light work,
Rule 201.14 of the Medical Vocational Rules would direct a finding
of “Disabled.”
(Id. at 14-15.)
That argument lacks merit.
This Court (per Chief United States District Judge William L.
Osteen, Jr.) recently addressed and rejected a similar argument as
follows:
[W]here an ALJ fails to specify the frequency of
alteration in a sit/stand option, the reasonable
implication is that the claimant can sit or stand at his
own volition. Though the ALJ here failed to specify in
a hypothetical to the VE the frequency of alteration in
a hypothetical sit/stand option — and the VE never
testified as to the frequency — case law suggests it was
implicit that the claimant should be able to sit or stand
at-will.
Campbell v. Colvin, No. 1:11CV327, 2014 WL 2815781, at *5 (M.D.N.C.
June 23, 2014) (unpublished) (internal footnote omitted) (citing
Williams v. Barnhart, 140 F. App’x 932, 936–37 (11th Cir. 2005);
18
Wright v. Astrue, No. 1:09CV0003, 2012 WL 182167, at *8 (M.D.N.C.
Jan. 23, 2012) (Auld, M.J.) (unpublished); Vallejo v. Astrue, No.
3:10–CV–00445–GCM–DCK, 2011 WL 4595259, at *8–10 (W.D.N.C. Aug. 4,
2011) (unpublished); Smith v. Astrue, No. 5:09cv158/RS/EMT, 2010 WL
3749209, at *19 n.26 (N.D. Fla. Aug. 25, 2010) (unpublished)).
Moreover, at step five, the ALJ’s hypothetical question to the
VE included an RFC for light work with, inter alia, a sit-stand
option, and the VE cited three light jobs available in significant
numbers in the national economy that would accommodate a sit-stand
option. (Tr. 44.) Plaintiff failed to challenge the VE’s citation
of those jobs at the hearing (id.), a fact which further undermines
her position, see Campbell, 2014 WL 2815781, at *5 (“Plaintiff has
not pointed to any evidence or explained why he cannot perform the
jobs identified by the VE based upon his ability to sit or stand,
and Plaintiff's counsel did not question the VE during the hearing
on the frequency issue.
Plaintiff’s argument is weak.”) (internal
citation omitted)).
Accordingly,
the
Court
should
reject
Plaintiff’s
second
assignment of error.
3.
Mental RFC
Next, Plaintiff maintains that the mental component of the
RFC, “simple routine repetitive tasks involving minimal contact
with the public” (Tr. 18), does not adequately encompass the ALJ’s
step three finding that Plaintiff’s mental impairments impose
19
moderate limitation on her concentration, persistence, and pace
(id.).
(Docket Entry 16 at 15-17.)
Plaintiff asserts that, “[i]n
the Fourth Circuit, if the mental RFC and concomitant hypothetical
assumption
to
the
[VE]
do
not
accurately
set
forth
all
of
[Plaintiff’s] individual impairments and limitations, the response
given cannot be substantial evidence supporting [the] ALJ’s denial
of benefits.”
(Id. at 17 (citing Walker v. Bowen, 889 F.2d 47, 50
(4th Cir. 1989).)
Plaintiff’s argument provides no basis for
relief.
At step three of the SEP, the ALJ concluded that Plaintiff’s
mental impairment did not meet or equal the severity of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. 17-18.)
In that regard, the ALJ expressly considered whether
Plaintiff’s mood disorder met or equaled the severity of Listing
12.04, Affective Disorders, and, in finding that it did not,
assessed Plaintiff with “moderate” limitation in concentration,
persistence, and pace.
(Tr. 18.)
The ALJ acknowledged in his
decision that his step three finding did not constitute an RFC and
that the mental RFC used at steps four and five required a more
detailed assessment.
(Id.)
The ALJ then formulated Plaintiff’s
RFC, finding that she remained capable of performing “simple
routine
public.”
repetitive
(Id.)
tasks
involving
minimal
contact
with
the
Judges of this Court and others within the Fourth
Circuit have recognized that a limitation to simple, routine,
20
repetitive tasks properly accounts for moderate limitation in
concentration, persistence, and pace.
CV-0954
DCN,
2014
WL
2091255,
at
Clark v. Colvin, No. 9:13*8
(D.S.C.
May
19,
2014)
(unpublished); Ramsey v. Colvin, No. 1:10CV618, 2014 WL 639562, at
*5
(M.D.N.C.
Feb.
18,
2014)
(Auld,
M.J.)
(unpublished),
recommendation adopted, slip op. (M.D.N.C. Mar. 27, 2014) (Tilley,
S.J.); Parker v. Astrue, 792 F. Supp. 2d 886, 896 (E.D.N.C. 2011).
Thus, the ALJ had no obligation to expressly include in his RFC an
additional limitation regarding concentration, persistence, and
pace.
4.
Combined Effect of Impairments
Finally, Plaintiff contends that the ALJ erred by failing to
explain his evaluation of the combined effect of all of Plaintiff’s
impairments.
(Docket Entry 16 at 17-19.)
Although Plaintiff
recognizes that the ALJ acknowledged his obligation to consider the
combined effect of Plaintiff’s impairments in his decision (Tr.
15), Plaintiff maintains that the ALJ’s failure to explain how he
actually analyzed the cumulative impact of Plaintiff’s impairments
warrants remand (Docket Entry 16 at 19 (citing Reichenbach v.
Heckler, 808 F.2d 309, 312 (4th Cir. 1985), and Lemacks v. Astrue,
Civ. No. 8:07-2438-RBH-BHH, 2008 WL 2510087, at *4 (D.S.C. May 29,
2008) (unpublished) (in turn citing Alonzeau v. Astrue, Civ. No.
0:06-2926-MBS-BM, 2008 WL 313786, at *3 (D.S.C. Feb. 1, 2008)
(unpublished)))).
This contention warrants no relief.
21
Although Alonzeau and Lemacks, 2008 cases from the United
States District Court for the District of South Carolina, both hold
that an ALJ reversibly errs by failing to expressly explain his or
her analysis of the synergistic effect of all of a claimant’s
impairments, Alonzeau, 2008 WL 313786, at *3; Lemacks, 2008 WL
2510087, at *4, the weight of authority, including more recent
cases from
the
District
of
South
Carolina,
does
not
support
Plaintiff’s argument, as recognized in the following well-reasoned
case:
When dealing with a claimant with multiple impairments,
the Commissioner must consider the combined effect of a
claimant’s impairments and not fragmentize them.” Walker
v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (citing
Reichenbach v. Heckler, 808 F.2d 309 (4th Cir. 1985)[)].
This requires the ALJ to “adequately explain his or her
evaluation of the combined effects of the impairments.”
Id. The ALJ’s duty to consider the combined effects of
a claimant’s multiple impairments is not limited to one
particular aspect of review, but is to continue
“throughout the disability determination process.” 20
C.F.R. § 404.1523.
Following the Walker decision, the Fourth Circuit has
provided little elaboration on what constitutes an
“adequate” combined effect analysis.
However, other
circuits have shown great deference to the Commissioner
in addressing the same issue.FN2
In an unpublished
opinion decided after Walker, the Fourth Circuit seems to
fall in line with these other circuits. See Green v.
Chater, 64 F.3d 657, 1995 WL 478032 (4th Cir. 1995). In
the opinion, the court found that the district court
“correctly determined that the ALJ had adequately
explained his evaluation of the combined effect of [the
claimant’s] impairments.” Id. at *3. In reaching this
conclusion, the court focused on the ALJ’s conclusory
statement that he had considered all of the claimant’s
impairments, both singularly and in combination and then
noted evidence that was consistent with this conclusion.
Id. This evidence consisted of (1) the ALJ’s finding
22
that the claimant’s combination of impairments precluded
heavy lifting; (2) the ALJ’s listing and consideration of
each of the alleged impairments; and (3) the ALJ’s
finding that many of the claimant’s symptoms were
treatable.
Id.
Thus, this limited threshold for an
“adequate” combined effect analysis suggests that “Walker
was not meant to be used as a trap for the Commissioner.”
Brown v. Astrue, 0:10-cv-01584-RBH, 2012 WL 3716792, at
*6 (D.S.C. Aug. 28, 2012). “Accordingly, the adequacy
requirement of Walker is met if it is clear from the
decision as a whole that the ALJ considered the combined
effect of a claimant’s impairments.” Id.
FN2.
See Gooch v. Secretary, Health & Human
Servs., 833 F.2d 589, 592 (6th Cir. 1987) (“[T]he
fact that each element of the record was discussed
individually hardly suggests that the totality of
the record was not considered, particularly in view
of the fact that the ALJ specifically referred to
‘a combination of impairments’ in deciding that
[the plaintiff] did not meet the ‘listings.’”);
Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir.
1992)
(“After
separately
discussing
[the
plaintiff’s]
physical
impairments,
affective
disorder, and complaints of pain, as well as her
daily level of activities, the ALJ found that her
impairments do not prevent [her] from performing
her past relevant work.
To require a more
elaborate articulation of the ALJ’s thought
processes would not be reasonable.”
(internal
quotation marks omitted)); Eggleston v. Bowen, 851
F.2d 1244, 1247 (10th cir. 1988) (“The ALJ’s
opinion
addresses
[the
plaintiff’s]
various
impairments, and we find nothing to suggest they
were not properly considered.”).
Williams v. Colvin, Civ. No. 6:11-2344-GRA-KFM, 2013 WL 877128, at
*2 (D.S.C. Mar. 8, 2013) (unpublished); see also Paris v. Colvin,
No. 7:12-CV-00596, 2014 WL 534057, at *12 (W.D. Va. Feb. 10, 2014)
(unpublished) (holding that “[i]t is apparent from the RFC itself
that
the
ALJ
accounted
for
the
cumulative
impact
of
[the
plaintiff’s] impairments as supported in the record, providing
23
restrictions that are both mental and physical”); Wilson-Coleman v.
Colvin, NO. 1:11CV726, 2013 WL 6018780, at *3 (M.D.N.C. Nov. 12,
2013) (Webster, M.J.) (unpublished) (concluding that “sufficient
consideration of the combined effects of a claimant’s impairments
is shown when each is separately discussed in the ALJ’s decision,
including discussion of a claimant’s complaints of pain and level
of daily activities” (quoting Baldwin v. Barnhart, 444 F. Supp. 2d
457, 465 (E.D.N.C. 2005), aff’d, 179 F. App’x 167 (4th Cir. 2006))
(internal brackets omitted)), recommendation adopted, slip op.
(M.D.N.C. Dec. 6, 2013) (Schroeder, J.); Jones v. Astrue, No. 5:07CV-452-FL, 2009 WL 455414, at *15 (E.D.N.C. Feb. 23, 2009) (noting
that ALJ’s RFC assessment and summarization of medical records as
to each impairment indicate ALJ “considered all of [the c]laimant’s
mental and physical limitations together”).
Here, the ALJ provided a thorough discussion of the medical
evidence and discussed each of Plaintiff’s alleged impairments,
both severe and non-severe.
(Tr. 16-23.)
At step three, the ALJ
expressly found that Plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments.”
(Tr. 17 (emphasis
added).) In conjunction with the RFC determination, the ALJ stated
that he had “considered all symptoms and the extent to which these
symptoms
can
reasonably
be
accepted
as
consistent
objective medical evidence and other evidence.”
24
with
(Tr. 18.)
the
With
regard to Plaintiff’s obesity, the ALJ remarked that he evaluated
whether Plaintiff’s obesity caused “an adverse impact upon her coexisting impairments.”
(Tr.
17.)
Moreover,
the
ALJ’s
RFC,
limiting Plaintiff to light work with a sit/stand option involving
simple, routine, and repetitive tasks and minimal contact with the
public (Tr. 18), clearly accounted for Plaintiff’s physical and
mental
impairments.
Thus,
the
ALJ’s
decision,
as
a
whole,
adequately demonstrates that he considered Plaintiff’s impairments
in combination in accordance with Walker.
As a final note, even if the Court should find that the ALJ
did not adequately explain his analysis of the cumulative effect of
Plaintiff’s impairments, Plaintiff has not made any attempt to show
how
a
more
complete
analysis
would
have
resulted
in
a
more
restrictive RFC or a different outcome in the case and, thus, such
harmless error does not warrant remand.
See Anderson v. Colvin,
No. 1:10CV671, 2013 WL 3730121, at *7 (M.D.N.C. Jul. 12, 2013)
(Webster, M.J.) (unpublished) (“Plaintiff has failed to establish
how further scrutiny of the combination of her impairments results
in any greater functional limitations than those already set forth
in her RFC.”), recommendation adopted in relevant part, 2014 WL
1224726 (M.D.N.C. Mar. 25, 2014) (Osteen, C.J.) (unpublished).
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgement (Docket Entry 15) be denied, that Defendant’s
25
Motion for Judgment on the Pleadings (Docket Entry 17) be granted,
and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 5, 2015
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?