Foushee v. COLVIN et al

Filing 19

MEMORANDUM OPINION AND ORDER. Signed by JUDGE N. C. TILLEY, JR on 12/3/2014. For the reasons set forth herein, Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, Doc. # 9 , is DENIED, and Defendant's Motion for Judgment on the Pleadings, Doc. # 14 , is GRANTED.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DORIS FOUSHEE,
Plaintiff,
v.

CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.

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1:13CV815

MEMORANDUM OPINION AND ORDER
Plaintiff Doris Foushee brought this action pursuant to
42 U.S.C. § 405(g), Section 205(g) of the Social Security Act, to obtain
judicial review of a final decision of the Commissioner of Social Security
denying her claim for a period of disability and disability insurance under
Title II of the Social Security Act. Doc. #1. The administrative record was
certified to the Court for review.1 Plaintiff filed a Motion for Judgment
Reversing or Modifying the Decision of the Commissioner of Social Security,
Doc. #9, and Defendant filed a Motion for Judgment on the Pleadings, Doc.

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All references to the administrative record are noted as “A.R.”

#14. On November 18, 2014, a hearing was held on the parties’ motions.2
For the reasons explained below, Plaintiff’s Motion for Judgment Reversing
or Modifying the Decision of the Commissioner of Social Security is
DENIED, and Defendant’s Motion for Judgment on the Pleadings is
GRANTED.
I.
Plaintiff filed a Title II application for a period of disability and
disability insurance benefits on May 4, 2010, with an alleged onset date of
April 7, 2010. (A.R. 47-48.) The claim was denied initially and upon
reconsideration. (Id. at 57, 69-70.) On May 10, 2012, a video hearing was
held, at which Plaintiff was represented by counsel and she and a
vocational expert testified. (Id. at 25-47.) In his decision dated June 20,
2012, the Administrative Law Judge (“ALJ”) found Plaintiff not disabled.
(Id. at 20.) Plaintiff alleges that (1) the ALJ committed reversible error by
failing to give controlling weight to the opinion of Plaintiff’s treating
opthalmologist, Dr. Kelly Muir,3 (2) the ALJ committed reversible error by
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All references to attorney assertions or argument during the hearing
before this Court are referred to as “Tr.”
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Although Plaintiff broadly describes the ALJ’s alleged error as having
“failed to give controlling weight to the opinion of the Claimant’s treating
opthalmologist,” Plaintiff’s argument focuses on Dr. Muir’s response to
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relying on vocational expert testimony which was not based on a
consideration of all relevant evidence of record on Plaintiff’s impairments,
(3) substantial evidence does not support the ALJ’s conclusion that Plaintiff
is capable of successfully adjusting to other work that exists in the national
economy in significant numbers, and (4) the ALJ committed reversible error
when he ignored and failed to consider evidence of another agency’s
disability determination. Doc. #9. Substantial evidence supports the ALJ’s
decision, and, thus, there is no error.
II.
This Court’s review of the Commissioner of Social Security’s decision
that Plaintiff is not disabled is limited to determining whether the ALJ’s
findings are supported by substantial evidence and whether he applied the
correct law. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotations omitted). This Court does not reweigh evidence

Question 10 of the Vision Impairment: Residual Functional Capacity
Questionnaire (“Vision RFC Questionnaire”) and the ALJ’s alleged rejection
of that response. Pl.’s Br. in Support of Pl.’s Mtn. at 4-10 (Doc. #10).
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or make credibility determinations. Id.
Plaintiff first alleges that the ALJ erred by failing to give controlling
weight to the opinion of Plaintiff’s treating opthalmologist, Dr. Muir.
“Generally,” the ALJ gives “more weight” to the opinions of treating
physicians, such as Dr. Muir. 20 C.F.R. § 404.1527(c)(2). If the treating
physician’s opinion on the issues of the nature and severity of impairments
is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and is consistent with other substantial evidence, the ALJ
gives the opinion “controlling weight.” Id. When the ALJ does not give the
treating physician’s opinion controlling weight, he examines factors in
20 C.F.R. § 404.1527(c)(2)(i)-(ii) and (c)(3)-(6) to determine the weight to
afford the opinion. Id.
The ALJ found as part of Plaintiff’s Residual Functional Capacity
(“RFC”) that she “has a visual impairment that would limit her to gross type
vision, for example, not having to pay attention to fine detail and small
print.” (A.R. 16.) As part of his analysis to determine Plaintiff’s RFC, the
ALJ explained that Plaintiff has glaucoma, 20/20 corrected visual acuity in
her right eye, and light perception only in the left eye as Dr. Muir noted on
the Visual RFC Questionnaire. (Id. at 18.) The ALJ recognized that Dr. Muir

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believed that Plaintiff’s right eye is normal, but she would be restricted in all
visual work activities such as near and far acuity in her left eye. (Id. at 1819.) The ALJ “generally” agreed with Dr. Muir’s opinion. (Id. at 19.)
However, he found Dr. Muir’s “conclusions regarding [Plaintiff’s] exertional
limitations, postural limitations, and environmental limitations4 inconsistent
with the weight of the medical evidence.” (Id.) The ALJ explained that
limiting [Plaintiff] to activities that do not involve focusing on
fine detail or small print fully encompasses her limitations
secondary to her left eye visual limitations. She has 20/20
vision in her right eye and is limited to primarily sitting jobs.
Accordingly, [there is] no need for additional environmental
limitations. Furthermore, . . . visual limitations would not
preclude the performance of postural activities.
(Id.)
According to the evidence before the ALJ, Dr. Muir treated Plaintiff
from September 2009 to June 2010 and July 2011 to December 2011, for
a total of approximately ten appointments. (Id. at Exs. 12F-14F.) Medical
records evidence, among other things, Plaintiff’s history of glaucoma with
corneal grafts. (See, e.g., id. at Ex. 3F.) On April 10, 2012, Dr. Muir
completed the Vision RFC Questionnaire, (id. at Ex. 14F), at the request of
Plaintiff’s counsel, Tr. 38:22-23. With respect to Plaintiff’s left eye, Dr.
4

Postural and environmental limitations, as well as visual limitations,
are considered nonexertional limitations. SSR 96-9p.
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Muir noted, among other things, that Plaintiff’s left eye visual acuity is
limited to light perception only and that Plaintiff can never perform work
activities involving near acuity, far acuity, depth perception,
accommodation, color vision, or field of vision. (A.R. Ex. 14F (Questions 5,
8.a.).)
Dr. Muir was also asked the following question, “Will your patient
sometimes need to take unscheduled breaks during an 8-hour working
day?” to which she was to respond by checking a box for “Yes” or “No.”
(Id. at Ex. 14F (Question 10).) Dr. Muir checked “Yes.” Although the
Vision RFC Questionnaire defines “rarely,” “occasionally,” and “frequently,”
it does not define “sometimes.” Question 10 affords no room for Dr. Muir
to expound upon her answer, nor did Dr. Muir choose to do so on her own.
Consequently, it is unclear what Dr. Muir opined. As Plaintiff’s counsel
conceded at the hearing, the question does not ask Dr. Muir if Plaintiff
would sometimes need to take unscheduled breaks during each 8-hour
working day. Tr. 40:14-18 (emphasis added). Likewise, Plaintiff’s counsel
conceded that sometimes could be once a month or once every six months.
Id. at 40:19-22. In other words, Dr. Muir’s answer to Question 10 of the
Vision RFC Questionnaire is vague.

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Plaintiff contends that her own testimony before the ALJ – that she
has to rest her eyes anywhere from eight to twelve times a day for fifteen
to thirty minutes at a time (A.R. 33) – supports Dr. Muir’s opinion.
Tr. 40:23-41:4. However, it is unclear what Dr. Muir’s opinion as to
Plaintiff’s need for breaks really is. See, e.g., Tr. 41:17-22 (Plaintiff’s
Counsel: “I don’t know why the claimant’s testimony, especially if it is
supportive of the opinion of the treating physician, doesn’t help in that
situation.” The Court: “You don’t know whether it is supportive or not. Dr.
Muir could have said one time every six months.” Plaintiff’s Counsel:
“Correct.”) Furthermore, a review of Plaintiff’s medical records, including
records from Dr. Muir, Plaintiff’s primary care physicians, Plaintiff’s
orthopaedic physicians, and hospital admissions reveals no indication that
Plaintiff would require unscheduled breaks during an 8-hour working day
and, therefore, no explanation as to how frequently or how long those
breaks would need to be. (See A.R. Exs. 1F-19F.)
Dr. Muir’s vague and unsupported response to Question 10 on the
Vision RFC Questionnaire is weak evidence of Plaintiff’s alleged requirement
for unscheduled breaks. See 20 C.F.R. § 404.1527(c)(3) (“The more a
medical source presents relevant evidence to support an opinion,

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particularly medical signs and laboratory findings, . . . [and] [t]he better an
explanation a source provides for an opinion, the more weight” is afforded
to that opinion.). Cf. Lawson v. Colvin, No. 7:13-cv-260, 2014 WL
1870853, *6 (W.D.Va. May 8, 2014) (distinguishing Mason v. Shalala, 994
F.2d 1058 (3d Cir. 1993) (finding form report requiring physician to check
box or fill in blank was weak evidence) because, unlike in Mason, Lawson’s
treating physician’s own examination notes and other physicians’ treatment
notes supported the treating physician’s answers in the form report which
should have been afforded controlling weight). Dr. Muir’s purported opinion
expressed in her response to Question 10 can hardly be considered an
opinion for purposes of determining Plaintiff’s vision residual functional
capacity. There simply is not enough information in the question
propounded to Dr. Muir or Dr. Muir’s response to constitute an opinion of
Plaintiff’s limitations, and neither Dr. Muir’s treatment notes nor any other
medical records reveal the meaning that Dr. Muir attributed to the question
or her answer. As such, the ALJ did not err in failing to afford controlling
weight to Dr. Muir’s response to Question 10.
At the hearing, Plaintiff’s counsel suggested that the ALJ should have
contacted Dr. Muir to follow up on her response to Question 10. E.g., Tr.

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43:11-19, 44:6-9, 44:18-22. Although a claimant has a duty to furnish all
relevant medical evidence and to carry the burden of proving that she is
disabled, an ALJ “shall make every reasonable effort to obtain from the
individual’s treating physician (or other treating health care provider) all
medical evidence . . . necessary in order to properly make” a determination
of disability. 20 C.F.R. § 404.1512(a); 42 U.S.C. § 423(d)(5)(B). A
regulation in effect at the time Plaintiff applied for disability on
May 4, 2010, and, therefore binding on the ALJ, required that the ALJ recontact a claimant’s treating physician where information from the treating
physician is inadequate to determine disability. 20 C.F.R. § 404.1512(e)(1)
(effective Aug. 1, 2006 to Nov. 11, 2010). However, that duty “arises
only when the evidence as a whole is inadequate to determine the issue of
disability.” Parker v. Astrue, 792 F. Supp. 2d 886, 895 (E.D.N.C. 2011).
Furthermore, “‘[a]lthough the ALJ has the duty to develop the record, such
a duty does not permit a claimant, through counsel, to rest on the record –
indeed, to exhort the ALJ that the case is ready for decision – and later
fault the ALJ for not performing a more exhaustive investigation.’”
McGlothlen v. Astrue, No. 7:11-CV-148-RJ, 2012 WL 3647411, *5
(E.D.N.C. Aug. 23, 2012) (quoting Maes v. Astrue, 522 F.3d 1093, 1097

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(10th Cir. 2008)). See also id. (quoting Clark v. Shalala, 28 F.3d 828, 830
(8th Cir. 1994) for the proposition that “[w]hile ‘the ALJ must fully and
fairly develop the record so that a just determination of disability may be
made, . . . the ALJ is not required to function as the claimant’s substitute
counsel’”).
At the hearing before this Court, Plaintiff’s counsel acknowledged that
his office not only prepared the Visual RFC Questionnaire at issue, but
received Dr. Muir’s completed Visual RFC Questionnaire dated April 11,
2012, and had the opportunity to review it prior to submitting it to the ALJ.
Tr. 39:2-14, 47:7-20. At the hearing before the ALJ, the ALJ identified
the exhibits Plaintiff submitted prior to the hearing (Exhibits 1A through
17F5) and asked if there was “[a]nything additional by the way of written
evidence that you haven’t already submitted that you may add to the
written record” to which Plaintiff’s counsel responded “No.” (A.R. 28.)
Furthermore, when the ALJ asked Plaintiff’s counsel if she6 had any
additional questions for Plaintiff, her counsel responded, “Not at this time”

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Also included as part of the administrative records are Exhibits 18F
and 19F, which Plaintiff submitted to the Appeals Council. (A.R. 4.)
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Plaintiff had different counsel at the hearing before the ALJ and the
hearing before this Court.
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and did not thereafter ask any of Plaintiff. (Id. at 41.) Likewise, after the
ALJ questioned the vocational expert, he asked Plaintiff’s counsel if she had
any questions, to which she responded “No.” (Id. at 45.) The ALJ
explained that “if [there were] nothing further,” he would issue a written
decision, to which Plaintiff’s counsel stated, “Thank you, your honor.” (Id.)
Prior to making his decision, the ALJ had before him approximately
two years of treating opthalmologists’ records among years of records from
primary care physicians, orthopaedists, and hospitals. (See id. at Exs. 1F17F.) In his decision, the ALJ explained that he came to Plaintiff’s RFC and
his decision that Plaintiff was not disabled “[a]fter careful consideration of
all the evidence,” (id. at 11, 16, 17), including the approximately two years
of medical records from Dr. Muir and opthalmologists who treated Plaintiff
prior to Dr. Muir, years of records from hospital admissions and
orthopaedists, the vocational expert’s testimony, and Plaintiff’s testimony.
The ALJ fulfilled his obligation under 42 U.S.C. § 423(d)(5)(B) to “make
every reasonable effort to obtain from [Dr. Muir] all medical evidence . . .
necessary in order to properly make” a disability determination. Dr. Muir’s
one-word answer to a vague question does not make the evidence as a
whole before the ALJ inadequate. Furthermore, the ALJ adequately

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explained, although not to Plaintiff’s liking, the weight he gave Dr. Muir’s
opinion and his supporting reasons. Therefore, substantial evidence
supports the ALJ’s weighing of Dr. Muir’s opinion.
III.
Plaintiff next alleges that the ALJ erred by relying on vocational expert
testimony which was not based on a consideration of all relevant evidence
on record of Plaintiff’s impairments. “In order for a vocational expert’s
opinion to be relevant or helpful, it must be based upon a consideration of
all other evidence in the record, and it must be in response to proper
hypothetical questions which fairly set out all of claimant’s impairments.”
Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (internal citations
omitted). Here, substantial evidence supports the ALJ’s reliance on the
vocational expert’s testimony.
The ALJ asked the vocational expert two hypothetical questions: the
first question did not include a limitation requiring unscheduled breaks
during an eight-hour working day and the second question did include such
a limitation. Specifically, as part of the first hypothetical question, the ALJ
stated
I’d like you to further assume that I find that she does have the
age, the education and the vocational background as that is said
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in the record, . . . I’d like you to further assume that I find that
she does have a visual impairment. I’d like you to assume for
purposes of this question that due to the visual impairment she
would have the need to use [INAUDIBLE]. In other words, not
have to pay attention to real fine detail, small print or any of
those kinds of things, and further that she has a leg problem
that does give her some pain. She’s had surgery on her leg, and
because of the leg problem, she would have the need to sit
most of the time, but could do some occasional standing and
short distance walking. That lifting should be limited to about
10 pounds or less. If I found these — and the pain overall
would not, if she stays within these limitations, would not exist
to the extent that it interfered with her concentration.
(A.R. 43.) In response, the vocational expert testified that Plaintiff could
not return to her previous work, but that she could perform other work that
exists in the economy. (Id. at 43-44.) In the second hypothetical, the ALJ
stated
I’d like to assume all of the same factors I gave you just in this
first question, but in this question I’d like for you to assume that
her visual impairment would exist as I describe, but that her
vision after at least two to three hours of activity would become
blurred and she would have the need to rest her eyes for at
least 25 to 30 minutes before she continued even with gross
[INAUDIBLE].
(Id. at 44.) In response, the vocational expert testified that there are no
jobs that Plaintiff could perform. (Id. at 44-45.) The vocational expert’s
opinions were based on the evidence on record and in response to two
hypothetical questions which set out Plaintiff’s alleged limitations. Even

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Plaintiff conceded that the first hypothetical is “for all practical purposes,
identical to the RFC [the ALJ] adopted in his hearing decision.” Pl.’s Br. in
Support of Mtn. at 12-13. As explained above, substantial evidence
supports the ALJ’s weighing of Dr. Muir’s opinion concerning Plaintiff’s
need for unscheduled breaks (as well as Plaintiff’s testimony about the
same) and his ultimate conclusion not to include that limitation in Plaintiff’s
RFC. Therefore, substantial evidence also supports the ALJ’s reliance on
the testimony of the vocational expert in response to the first hypothetical
which paralleled Plaintiff’s RFC.
IV.
Plaintiff alleges that substantial evidence does not support the ALJ’s
conclusion that Plaintiff is capable of successfully adjusting to other work
that exists in the national economy in significant numbers. For the reasons
explained in sections II and III, substantial evidence supports the ALJ’s
conclusion that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform. As part of Plaintiff’s argument,
she argues that her right to a hearing under 20 C.F.R. § 404.950(a) was
violated as a result of periodic audio difficulties during the video hearing
before the ALJ. For the hearing, the ALJ was located in Greenville, South

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Carolina, while Plaintiff was in Greensboro, North Carolina. As support for
her argument, Plaintiff cites to the number of times “INAUDIBLE” appears in
the transcript of the hearing. However, it is apparent from the transcript
that the ALJ had Plaintiff repeat the portions of her testimony that the ALJ
did not apparently clearly hear and that the ALJ himself accurately
summarized some of Plaintiff’s testimony concerning her visual limitations in
his questioning of Plaintiff and the vocational expert. (Id. at 33-35, 40, 44.)
Plaintiff was not prejudiced by any audio difficulties nor was her right to a
hearing violated.
V.
Plaintiff alleges that the ALJ committed reversible error when he
ignored and failed to consider evidence of another agency’s disability
determination. Plaintiff settled a workers’ compensation claim on April 2,
2011, and the settlement was approved by the North Carolina Industrial
Commission. (Id. at 121-133.) According to Plaintiff, the North Carolina
Industrial Commission is a state agency that administers the North Carolina
Workers’ Compensation Act, and, as such, “[t]he disability determination of
[the North Carolina Industrial Commission] is entitled to consideration in an
SSA disability proceeding.” Bird v. Comm’r of Social Sec. Admin., 699 F.3d

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337, 343 (4th Cir. 2012) (involving a disability determination by the
Department of Veterans Affairs).
Plaintiff’s workers’ compensation claim centered around an injury
Plaintiff sustained to her left knee. (Id. at 121-129.) Plaintiff acknowledged
that the RFC adequately reflects her knee impairment and limitations. Pl.’s
Br. in Support of Mtn. at 6. In addition, the workers’ compensation
settlement noted that one of Plaintiff’s orthopaedic physicians assigned a
rating to her left leg when she reached maximum medical improvement. (Id.
at 124.) But, the settlement did not make a finding as to the nature and
severity of Plaintiff’s limitations nor did it conclude that Plaintiff was
disabled and unable to engage in substantial gainful activity.
In addition, the workers’ compensation settlement and North Carolina
Industrial Commission approval of the settlement were part of the record
before the ALJ. (See id. at Ex. 5D & 27-28 (noting the ALJ’s recognition of
Exhibits 1A through 17F and admitting them into evidence).) The ALJ
made his decision “[a]fter consideration of all the evidence,” and determined
Plaintiff’s RFC “[a]fter careful consideration of the entire record.” (Id. at 11,
16, 17.) Although the ALJ “is required to consider all record evidence
relevant to a disability determination,” Bird, 699 F.3d at 343, he is not

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required to discuss every piece of evidence he considers, Hunter v. Colvin,
No. 1:10-CV-401, 2013 WL 2122575, *4 (M.D.N.C. May 15, 2013).
Because the ALJ stated that he considered all of the evidence of record,
which included the workers’ compensation settlement and that evidence
would have little, if any, bearing on the disability determination, Plaintiff’s
argument on this issue lacks merit.
VI.
For the reasons set forth above, Plaintiff’s Motion for Judgment
Reversing or Modifying the Decision of the Commissioner of Social Security,
Doc. #9, is DENIED, and Defendant’s Motion for Judgment on the
Pleadings, Doc. #14, is GRANTED.
This the 3rd day of December, 2014.

/s/ N. Carlton Tilley, Jr.
Senior United States District Judge

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