BEAN v. COLVIN
Filing
20
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/17/2015; that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment Reversing the Commissioner [Doc. # 15 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 18 ] be GRANTED, and that this action be DISMISSED with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TERESA R. BEAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
1:14CV32
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Teresa Bean brought this action pursuant to Sections 205(g) and 1631(c)(3)
of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to
obtain judicial review of a final decision of the Commissioner of Social Security denying her
claims for Disability Insurance Benefits and Supplemental Security Income under,
respectively, Titles II and XVI of the Act.
The parties have filed cross-motions for
judgment, and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff filed her applications for Disability Insurance Benefits and Supplemental
Security Income on June 14, 2010 and June 21, 2010, respectively, alleging a disability onset
date of January 1, 2010. (Tr. at 204-15.) 1 Her applications were denied initially and upon
reconsideration. (Tr. at 62-121.)
Thereafter, Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”). (Tr. at 156-57.) Following the subsequent hearing
1
Transcript citations refer to the Sealed Administrative Transcript of Record [Doc. #s 6-13].
on March 1, 2012 (Tr. at 32-60), the ALJ issued a decision finding Plaintiff not disabled
within the meaning of the Act (Tr. at 14-31). On November 21, 2013, the Appeals Council
denied review, thereby making the ALJ’s conclusion the Commissioner’s final decision for
purposes of judicial review (Tr. at 1-7).
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). However, “the
scope of . . . review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “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).
“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.
1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (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) (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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of
2
the [ALJ].” 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 ALJ.” Hancock, 667 F.3d at 472
(internal brackets 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).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). 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
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
2
“The Social Security Act comprises two disability benefits programs. The Social Security Disability
Insurance Program . . . 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 (internal citations omitted).
3
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if
not, could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 two
steps, and establishes that the impairment “equals or exceeds in severity one or more of the
impairments listed in Appendix I of the regulations,” then “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 function[al] 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.
Id. at 179-80. However, if the claimant establishes an inability to return to prior work, the
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 pursuant to the administrative regulations, the “RFC is an assessment of an individual’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.
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analysis proceeds to the fifth step, which “requires the Commissioner to prove that a
significant number of jobs exist which the claimant could perform, despite [the claimant’s]
impairments.” Hines, 453 F.3d at 563. In making this determination, 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 Government cannot carry
its “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.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial
gainful activity” since her alleged onset date. She therefore met her burden at step one of
the sequential evaluation process. At step two, the ALJ further determined that Plaintiff
suffered from the following severe impairments: degenerative disc disease of the lumbar
spine, sacroilitis, chronic obstructive pulmonary disorder (“COPD”), depression, right toe
cyanosis, bilateral knee osteoarthritis, bilateral chrondromalacia of the patella, asthma, and
chronic headaches. (Tr. at 16.) The ALJ found at step three that these impairments did not
meet or equal a disability listing. (Tr. at 17.) Therefore, he assessed Plaintiff’s RFC and
determined that she could perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a)
and 416.967(a), except that she:
could lift and/or carry 10 pounds occasionally and less than 10 pounds
frequently; could sit for at least six hours and stand or walk for two hours, but
only stand and walk for short distances or short time frames; could push or
pull occasionally with the bilateral lower extremities; could not climb ladders,
ropes or scaffolds, but could occasionally perform other postural activities;
must avoid a concentrated exposure to hazards or pulmonary irritants; is
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limited to simple repetitive tasks and unskilled work, defined as routine with
little, if any, change; requires a work setting that involves only occasional
interpersonal contact; needs a stretch break at 30 minute intervals while
seated.
(Tr. at 19.) At step four of the analysis, the ALJ found that Plaintiff’s past relevant work
exceeded her RFC. (Tr. at 23.) However, based on the testimony of a vocational expert, the
ALJ concluded at step five that Plaintiff could perform other jobs that exist in significant
numbers in the national economy and therefore was not disabled. (Tr. at 23-24.)
Plaintiff now challenges the ALJ’s decision in three respects. Specifically, she alleges
that the ALJ (1) failed to properly evaluate her knee impairment under 20 C.F.R. Part 404,
Subpt. P, Appendix I, § 1.03 (hereinafter “Listing 1.03”), (2) failed to properly weigh the
February 15, 2011 medical source opinion of Dr. Randall Mercier, and (3) improperly
assessed Plaintiff’s credibility. 4 Plaintiff further contends that the second and third alleged
errors resulted in an erroneous RFC assessment. The Commissioner, in turn, urges that
substantial evidence supports the ALJ’s decision.
A.
Listing 1.03
Plaintiff first contends that the ALJ erred at step three of the sequential analysis, by
failing to consider the applicability of Listing 1.03 to the facts of Plaintiff’s case. Under the
Fourth Circuit’s decision in Cook v. Heckler, 783 F.2d 1168 (4th Cir. 1986), when there is
“ample evidence in the record to support a determination” that the claimant’s impairment
meets or equals one of the listed impairments, the ALJ must identify “the relevant listed
impairments” and compare “each of the listed criteria to the evidence of [the claimant's]
Plaintiff enumerates only two assignments of error in her brief, as she imbeds her contention regarding Dr.
Mercier within her credibility argument.
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symptoms.” Id. at 1172, 1173; see also Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013)
(noting that “full explanation by the ALJ is particularly important” when “there is probative
evidence strongly suggesting that [the claimant] meets or equals” a Listing). “Under Cook,
the duty of identification of relevant listed impairments and comparison of symptoms to
Listing criteria is only triggered if there is ample evidence in the record to support a
determination that the claimant's impairment meets or equals one of the listed impairments.
Neither the Social Security law nor logic commands an ALJ to discuss all or any of the listed
impairments without some significant indication in the record that the claimant suffers from
that impairment.” Ketcher v. Apfel, 68 F. Supp. 2d 629 (D. Md. 1999); see also Russell v.
Chater, 60 F.3d 824, 1995 WL 417576, at *3 (4th Cir. 1995) (unpublished disposition)
(“Cook, however, does not establish an inflexible rule requiring an exhaustive point-by-point
discussion in all cases.”). Moreover, because Plaintiff bears the burden of evidentiary proof
at step three, the task of supplying evidence that she meets a listing rests with her. Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) (“Through the fourth step, the burden of
production and proof is on the claimant.”).
In this case, Plaintiff provided no evidence to support a determination that she met
Listing 1.03. Listing 1.03, in its entirety, provides as follows:
1.03 Reconstructive surgery or surgical arthrodesis of a major weight-bearing
joint, with inability to ambulate effectively, as defined in 1.00B2b, and return
to effective ambulation did not occur, or is not expected to occur, within 12
months of onset.
20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 1.03. Section 1.00B2b(1) further specifies that
[i]nability to ambulate effectively means an extreme limitation of the ability to
walk; i.e., an impairment(s) that interferes very seriously with the individual’s
ability to independently initiate, sustain, or complete activities. Ineffective
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ambulation is defined generally as having insufficient lower extremity
functioning . . . to permit independent ambulation without the use of a handheld assistive device(s) that limits the functioning of both upper extremities.
20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 1.00B2b(1). Section 1.00B2b(2) then goes on to
provide “examples of ineffective ambulation,” which
include, but are not limited to, the inability to walk without the use of a
walker, two crutches or two canes, the inability to walk a block at a reasonable
pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable
pace with the use of a single hand rail.
20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 1.00B2b(2).
In the present case, Plaintiff’s partial right knee replacement on January 17, 2012
arguably met the surgical requirement of Listing 1.03. 5 However, Plaintiff presented no
evidence that a “return to ambulation did not occur, or is not expected to occur, within 12
months” of that surgery. In fact, at her post-operative appointment just six weeks after
surgery, Plaintiff reported “doing very well” despite “some occasional pain in [her] right
knee,” and indicated that she was using a single cane for her left knee at that time. (Tr. at 20,
953.) At her hearing the following month, Plaintiff also employed a single cane, which she
testified as using primarily for support and balance, rather than an inability to walk without
it.
(Tr. at 20, 41.)
Accordingly, the record clearly lacked evidence, let alone “ample
Plaintiff notes that she “has undergone 9 surgeries on her knees,” three of which took place during her
alleged disability period. (Pl.’s Br. [Doc. #16] at 10.) However, as Defendant correctly observes, only
Plaintiff’s partial replacement potentially qualifies as “reconstructive surgery” sufficient to meet Listing 1.03’s
requirement. (Def.’s Br. [Doc. #19] at 6.) Plaintiff does not present any evidence that her prior arthroscopic
procedures would constitute reconstructive surgery or surgical arthrodesis (fusion). See Nance v. Colvin, No.
CV 13-4633-DFM, 2014 WL 3347027 (C.D. Cal. July 8, 2014) (“Plaintiff has provided no proof that the
arthroscopic surgeries on his knees involved reconstruction or surgical arthrodesis, as required by Listing
1.03. It appears from the record that Plaintiff's arthroscopic knee surgeries were minimally invasive.”).
Moreover, and in any event, there is no evidence of inability to ambulate effectively as discussed above.
5
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evidence,” to support a finding that Plaintiff was expected to require the use of hand-held
assistive devices which limited the functioning of both her upper extremities for a period of
at least twelve months following her January 2012 surgery. Therefore, the ALJ did not err in
omitting a discussion of Listing 1.03 from his decision.
B.
Dr. Mercier’s Opinion
Plaintiff next claims that the ALJ failed to properly analyze the opinion of Dr.
Mercier, her primary care physician, under 20 C.F.R. §§ 404.1527(c) and 416.927(c), better
known as the “treating physician rule.” The treating physician rule generally requires an ALJ
to give controlling weight to the opinion of a treating source as to the nature and severity of
a claimant’s impairment, based on the ability of treating sources to
provide a detailed, longitudinal 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(c)(2) and 416.927(c)(2). However, if a treating source’s opinion is not
“well-supported by medically acceptable clinical and laboratory diagnostic techniques or is
inconsistent with the other substantial evidence in the case record,” it is not entitled to
controlling weight.
See Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *5; 20
C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2); see also Craig, 76 F.3d at 590; Mastro, 270 F.3d
at 178. Instead, the opinion must be evaluated and weighed using all of the factors provided
in 20 C.F.R. § 416.927(c)(2)(i)-(c)(6) and § 404.1527(c)(2)(i)-(c)(6), including (1) the length of
the treatment relationship, (2) the frequency of examination, (3) the nature and extent of the
treatment relationship, (4) the supportability of the opinion, (5) the consistency of the
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opinion with the record, (6) whether the source is a specialist, and (7) any other factors that
may support or contradict the opinion.
When an ALJ does not give controlling weight to a treating source opinion, she must
“give good reasons in [her] . . . decision for the weight” assigned, taking the above factors
into account. 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). “This requires the ALJ to
provide sufficient explanation for ‘meaningful review’ by the courts.” Thompson v. Colvin,
No. 1:09CV278, 2014 WL 185218, at *5 (M.D.N.C. Jan. 15, 2014) (quotations omitted); see
also SSR 96-2p (noting that the decision “must contain specific reasons for the weight given
to the treating source’s medical opinion, supported by the evidence in the case record, and
must be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that weight”).
Finally, opinions by physicians regarding the ultimate issue of whether a plaintiff is
disabled within the meaning of the Act are never accorded controlling weight because the
decision on that issue is reserved for the Commissioner alone. 20 C.F.R. §§ 404.1527(d) and
416.927(d).
In the present case, Dr. Mercier authored a letter to Plaintiff’s attorney on February
15, 2011, indicating that he began treating Plaintiff “for blood pressure problems and severe
breathing problems” in February 2010, a month after her alleged onset date. He noted that,
“[a]s [Plaintiff’s] office visits progressed[,] her medical problems revealed she had spinal
stenosis and degenerative bone disease.” Dr. Mercier subsequently referred Plaintiff to
Pinehurst Surgical, where she underwent right knee surgery in June of 2010. (Tr. at 666.)
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Dr. Mercier related that Plaintiff “continued to report that her back is causing her
severe discomfort upon each office visit,” and that “[t]his type of pain is making it difficult
to sleep or stand for long periods of time.” He further indicated that “Dr. James Skeen was
consulted to help [Plaintiff] with back pain management and injections” and that Dr. David
Strom was more recently consulted for “ongoing right foot pain.” Dr. Mercier continued to
see Plaintiff himself “for severe asthma, back pain, and knee issues.” He opined that
Plaintiff “is unable to work due to severe degenerative bone disease,” noting that “[s]he has
had many surgical procedures which have never really been successful or given her a positive
result.” (Tr. at 666.)
The ALJ explicitly “considered Dr. Mercier’s opinions regarding [Plaintiff’s]
functional limitations and abilities to work.” (Tr. at 22.) However, he correctly noted that
Dr. Mercier’s statement that Plaintiff “is unable to work” was not a medical opinion, but an
administrative finding dispositive of an issue reserved to the Commissioner. (Tr. at 22)
(citing 20 C.F.R. §§ 404.1527(d), 416.927(d)).
Because the social security regulations
specifically instruct decision makers to give no “special significance” to such statements, 20
C.F.R. §§ 404.1527(d)(3), 416.927(d)(3), the ALJ properly “granted minimal weight” to Dr.
Mercier’s conclusion (Tr. at 22).
Additionally, the ALJ found that Dr. Mercier’s opinions were “not consistent with
the longitudinal body of evidence,” and specifically noted that Plaintiff’s physical
examinations, recounted earlier in the decision, did not support Dr. Mercier’s conclusions.
(Tr. at 22.) In fact, despite seeing Dr. Mercier at least twice a month in early 2010, Plaintiff
only began reporting back pain on her seventh visit, some three months after her alleged
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onset (Tr. at 638), and she did not report back soreness on all, or even most, of her
subsequent visits (see Tr. at 639-665). Dr. Mercier’s treatment notes also fail to reflect any
objective findings supporting his opinion that Plaintiff suffers disabling back pain. In
contrast, the ALJ’s decision recounts ample findings suggesting that Plaintiff’s back
impairment was not as severe as either she or Dr. Mercier alleged:
With regard to [Plaintiff’s] back condition, radiographic reports reveal that she
was diagnosed with degenerative disc disease of the lumbar spine and she
testified to undergoing injections to help alleviate the pain. However, March
9, 2011 treatment records show that her low back pain did not involve
radiculopathy and was effectively treated with prescription medication when
taken as prescribed. In addition, a lumbar MRI taken on September 16, 2010
revealed facet arthropathy at L4-5 and L5-S1 but no evidence of stenosis.
Treatment notes from Sandhills Neurology reveal that the claimant’s course
was stable, and she reported good tolerance without any side effects or
complications and good compliance with treatment. Physical examinations of
her back have shown a slightly reduced range of motion but nearly full
strength findings and negative straight leg raise tests.
(Tr. at 20) (citations omitted).
Dr. Mercier’s notes similarly reflect few findings regarding Plaintiff’s knee
impairment, other than to note occasional reports of pain and her treatment by other
physicians.
(Tr. at 641, 642, 644, 645, 665.)
The ALJ’s RFC findings nevertheless
incorporate Dr. Mercier’s opinion that Plaintiff’s pain would prevent her from performing
some work activities, such as standing for long periods.
To this end, the ALJ limited
Plaintiff to sedentary work in which she would only be required to “stand and walk for short
distances or short time frames.” (Tr. at 19.) Due to Plaintiff’s back and knee impairments,
the ALJ further provided that Plaintiff could never climb, could perform other postural
activities no more than occasionally, could not lift or carry more than 10 pounds, and
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required a stretch break at 30 minute intervals while seated. In short, substantial evidence
supports that ALJ’s treatment of Dr. Mercier’s opinion.
C.
Credibility
Finally, Plaintiff challenges the ALJ’s finding that Plaintiff’s statements regarding the
intensity, persistence, and limiting effects of her symptoms were not fully credible. Under
the applicable regulations, the ALJ=s decision must Acontain specific reasons for the finding
on credibility, supported by the evidence in the case record.@ SSR 96-7p; see also 20 C.F.R.
§§ 404.1529, 416.929. Toward this end, the Fourth Circuit in Craig v. Chater provided a
two-part test for evaluating a claimant=s statements about symptoms. Craig, 76 F.3d at 59495. “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.’”
Id. 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 the ALJ to consider all available
evidence, including Plaintiff=s statements about her pain, in order to evaluate Athe intensity
and persistence of the claimant’s pain, and the extent to which it affects her ability to work.@
Craig, 76 F.3d at 596.
Notably, while the ALJ must consider Plaintiff=s statements and other subjective
evidence at step two, he need not credit them Ato the extent they are inconsistent with the
available evidence, including objective evidence of the underlying impairment, and the extent
to which that impairment can reasonably be expected to cause the pain the claimant alleges
she suffers.@ Id.
This approach facilitates the ALJ=s ultimate goal, which is to accurately
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determine the extent to which Plaintiff=s pain or other symptoms limit her ability to perform
basic work activities. Thus, a plaintiff=s Asymptoms, including pain, will be determined to
diminish [her] capacity for basic work activities [only] to the extent that [her] alleged
functional limitations and restrictions due to symptoms, such as pain, can reasonably be
accepted as consistent with the objective medical evidence and other evidence.@ 20 C.F.R.
' 404.1529(c)(4). Relevant evidence for this inquiry includes Plaintiff=s Amedical history,
medical signs, and laboratory findings@ Craig, 76 F.3d at 595, as well as the following factors
set out in 20 C.F.R. ' 404.1529(c)(3):
(i) [Plaintiff=s] daily activities;
(ii) The location, duration, frequency, and intensity of [Plaintiff=s] pain or
other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
[Plaintiff] take[s] or [has] taken to alleviate [her] pain or other symptoms;
(v) Treatment, other than medication, [Plaintiff] receive[s] or [has] received for
relief of [her] pain or other symptoms;
(vi) Any measures [Plaintiff] use[s] or [has] used to relieve [her] pain or other
symptoms (e.g., lying flat on [her] back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning [Plaintiff=s] functional limitations and
restrictions due to pain or other symptoms.
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Where the ALJ has considered these factors and has heard Plaintiff=s testimony and
observed her demeanor, the ALJ=s credibility determination is entitled to deference.
In the present case, the ALJ determined at step one that Plaintiff’s knee impairments
“could reasonably be expected to cause [her] alleged symptoms,” including pain. (Tr. at 20.)
Plaintiff’s case therefore hinges on the second part of the test, with respect to the ALJ’s
conclusion that ample objective evidence weighed against Plaintiff’s allegations of disabling
knee pain. 6 In particular, the ALJ noted that, although Plaintiff began a series of knee
surgeries and injections in 1997, she continued to work until February 2009, and did not
allege disability until January 1, 2010. (Tr. at 16, 20, 37, 225.) As mentioned above, Plaintiff
also testified to using a cane primarily for balance and support, rather than an inability to
walk without it. (Tr. at 20, 41.) She further acknowledged her ability to care for her
daughter, cook, shop, drive, and care for her personal needs, and the ALJ found her
activities “at least consistent with sedentary work.” (Tr. at 23, 41-43.) In terms of objective
evidence relating to Plaintiff’s alleged knee pain, the ALJ found that, although Plaintiff’s
physical exams revealed a limited range of motion and arthritis, they also noted normal
strength in her knees, with equal strength in her upper and lower extremities. (Tr. at 20, 41,
469, 603, 606, 733, 752, 758, 762, 771, 803, 914, 923, 949.) The ALJ also emphasized that
Plaintiff’s “routine x-rays have been essentially unremarkable, consisting of no deformities or
misalignments, no evidence of significant degenerative changes and an acceptable patellar
alignment.” (Tr. at 20, 738, 743, 775-76, 891, 924, 949.)
The ALJ’s decision addresses Plaintiff’s credibility as to all of her impairments. (Tr. at 20-21.) However,
Plaintiff only appears to challenge the validity of the ALJ’s credibility determination regarding her knee
impairment. (Pl.’s Br. at 11-12.)
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Plaintiff contends that the ALJ mischaracterized the medical evidence, and that,
“even at points where her X-rays were normal, her MRI’s were abnormal.” (Pl.’s Br. at 11.)
However, the records she cites fail to support her argument. (See Tr. at 679, 686, 701, 703,
738, 740.) Moreover, although the records show that Plaintiff’s knees later worsened to the
point that, by September 15, 2011, her right knee was “almost bone-on-bone laterally,” she
underwent a knee replacement just four months later, after which Plaintiff acknowledges
that her right knee x-ray was clean. (Pl.’s Br. at 11 (citing Tr. at 923, 1011).) In fact, after
her surgery, Plaintiff reported that she was doing very well, and her most recent knee
examination was unremarkable with full strength findings. (Tr. at 20, 953.) The above
findings constitute substantial evidence that Plaintiff’s knee impairment did not render her
totally disabled during the time period at issue as she alleges or limit her beyond the limited
range of sedentary work determined by the ALJ in this case. Accordingly, the Court finds no
error in the ALJ’s credibility determination.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment Reversing the
Commissioner [Doc. #15] be DENIED, that Defendant’s Motion for Judgment on the
Pleadings [Doc. #18] be GRANTED, and that this action be DISMISSED with prejudice.
This, the 17th day of July, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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