SANDERS v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/4/2015; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment (Docket Entry 12 ) 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
ERICA MCLUCAS SANDERS,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:14CV163
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Erica McLucas Sanders, 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 a claim for Disability Insurance Benefits (“DIB”). (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 11, 12). For the reasons that
follow, the Court should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB, alleging a disability
onset date of September 8, 2009.
that
application
initially
(Tr. 170-78.)
(Tr.
71-80,
Upon denial of
117-25)
and
on
reconsideration (Tr. 81-93, 128-35), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 136-37).
At the outset of the hearing, Plaintiff amended her onset date to
August 31, 2011, due to her receipt of unemployment compensation
through that date.
(Tr. 21, 164.)
Plaintiff, her attorney, and a
vocational expert (“VE”) attended the hearing.
(Tr. 17-70.)
decision
determined
dated
September
21,
2012,
the
Plaintiff was not disabled under the Act.
ALJ
(Tr. 94-108.)
By
that
On
January 7, 2014, 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 December 31, 2014.
2.
[Plaintiff] has not engaged in substantial gainful
activity since August 31, 2011, the amended alleged onset
date.
3.
[Plaintiff] has the following severe impairments:
bilateral patella chondromalacia; left shoulder pain
(bursitis);
foot
pain
from
gout;
bilateral
osteoarthrosis; and depression.
. . . .
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 sedentary work as defined in 20 CFR
404.1567(a) except [Plaintiff] can occasionally reach
overhead; can occasionally climb, stoop, kneel, crouch,
and crawl; and can perform simple routine repetitive
tasks.
2
. . . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . . .
10.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that [Plaintiff] can perform.
. . . .
11.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from September 8, 2009,
through the date of this decision.
(Tr. 99-107 (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 [judicial] 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 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
3
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 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 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
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
4
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.’” Id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).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
1
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
Supplemental Security Income . . . 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
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
(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
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
work; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
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) the ALJ failed to render an RFC supported by substantial
evidence due to improper evaluation of the opinions of a treating
physician (Docket Entry 10 at 11-13);
(2) as part of the RFC formulation, the ALJ erroneously
evaluated Plaintiff’s symptom reporting (id. at 13-14); and
4
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
(3) at step five, the ALJ relied upon VE testimony offered in
response to an incomplete hypothetical question (id. at 14-15).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 13 at 6-19.)
RFC and Treating Physician Opinions
In her first assignment of error, Plaintiff challenges the
ALJ’s RFC formulation, contending that the ALJ should have given
the
more
restrictive
physician,
Dr.
opinions
Melissa
controlling, weight.”
Gilmer
of
Plaintiff’s
Scott,
primary
“significant,
(Docket Entry 10 at 11.)
care
if
not
In particular,
Plaintiff asserts that Dr. Scott’s opinions reflect consistency
with other medical evidence of record, including orthopedist Dr.
Brian Szura’s prediction that “‘it is likely that [Plaintiff] is
going to require some type of surgical intervention’” (id. at 11-12
(quoting
Tr.
279)),
recommendation
of
orthopedist
“repeated
Dr.
cortisone
Ganesh
injections”
V.
Kamath’s
(id.
at
12
(citing Tr. 310)), and consultative psychiatrist Dr. Scott T.
Schell’s observation that Plaintiff “walked with a limp and cried
throughout the majority of the examination” (id. (citing Tr. 334)).
Plaintiff further argues that the ALJ erred by discounting Dr.
Scott’s opinions regarding Plaintiff’s limitations from depression
“on the basis that [Dr. Scott] was not a mental health specialist.”
(Id. at 12.)
Plaintiff’s arguments fall short.
8
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) (“[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
examinations
individual
or
brief
examinations,
such
as
hospitalizations.”).
consultative
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
it.
20
C.F.R.
§
404.1527(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.
opinion
is
20 C.F.R. § 404.1527(c)(2)-(4).
not
supported
by
clinical
“[I]f a physician’s
evidence
or
if
it
is
inconsistent with other substantial evidence, it should be accorded
significantly less weight.”
added).
Craig, 76 F.3d at 590 (emphasis
Finally, opinions by physicians regarding the ultimate
issue of disability and other such findings dispositive of a case
9
do not receive controlling weight because the Commissioner retains
the authority to render such decisions.
20 C.F.R. § 404.1527(e).
From June 26, 2010, to June 7, 2012, Dr. Scott completed five
RFC
questionnaires
(three
physical
and
two
mental)
on
forms
prepared by Plaintiff’s attorney. (See Tr. 296-97, 327-31, 377-78,
381-83.)5
Dr.
Scott
reported
that
Plaintiff
suffered
from
patellofemoral malalignment with chondromalacia, bursitis, gout,
and depression.
(Tr. 296, 327, 377.)
As a result of these
impairments, Dr. Scott opined that Plaintiff could perform less
than
a
full
limitations
range
in
her
of
sedentary
ability
to
work
walk,
(including
sit,
stand,
significant
lift/carry,
manipulate, and reach; a need to lie down during an eight-hour
workday in excess of standard breaks; and illness-related absence
more than four times per month).
(Tr. 296-97, 327-28, 377-78.)
From a mental perspective, Dr. Scott assessed moderate to extreme
limitations in Plaintiff’s ability to understand and remember, to
sustain attention and concentration, and to adapt in work-related
situations.
(Tr. 329-31, 381-83.)
Here, the ALJ’s evaluation of Dr. Scott’s opinions complied
with
the
regulatory
requirements.
The
ALJ
first
reviewed
Plaintiff’s medical records, including Dr. Scott’s treatment notes.
5
Dr. Scott also provided a “To Whom It May Concern” letter, dated June 7, 2012,
which concluded that “due to chronic pain and worsening depression over the past
years [Plaintiff] is unable to work any significant amount of hours.” (Tr. 374.)
10
(Tr. 102-03.)
The ALJ then discussed Dr. Scott’s opinions and
assessed them as follows:
The undersigned gives partial weight to Dr. Scott’s
opinion, but only to the extent that [Plaintiff] was
capable of performing work at less than the full range of
sedentary work.
The undersigned finds that to that
extent, Dr. Scott’s opinion was consistent with the
objective medical evidence, which showed that [Plaintiff]
was
diagnosed
with
depression
and
her
physical
examinations and diagnostic tests were generally mild to
unremarkable; except that a diagnostic test of her
cervical spine showed[] she had mild to moderate
degenerative changes . . . . Although Dr. Scott had a
long treatment relationship with [Plaintiff], the
undersigned did not give greater weight to her opinion
because the overall evidence of record did not support
such marked to extreme mental limitations, and she was
not a mental health specialist.
(Id.)
The record reflects that the ALJ properly discounted Dr.
Scott’s opinions largely based on the fact that her own treatment
notes failed to support her opinions (particularly as to mental
issues).
(See
regulations,
Tr.
the
103.)
ALJ
Additionally,
permissibly
found
in
Dr.
accord
Scott’s
with
the
opinions
inconsistent with other medical evidence (id.), such as diagnostic
tests
showing
only
mild
to
moderate
degenerative
changes
in
Plaintiff’s cervical spine and negative findings regarding her
right
ankle,
as
well
as
“generally
unremarkable”
physical
examinations with some tenderness in Plaintiff’s knees and left
shoulder but good range of motion, full strength, normal sensation,
ligamentous stability, normal gait and posture, and normal mood and
affect (see Tr. 102; see also Tr. 278, 280, 291, 304, 310-11, 316,
11
318, 320, 361-64, 366-67, 369-70, 385-87, 389-92).
Further,
neither of the statements by Drs. Szura and Kamath (which Plaintiff
cites as support for Dr. Scott’s prescribed restrictions) expresses
any opinion regarding functional limitations.
Similarly, although
Dr. Schell observed that Plaintiff walked with a limp and cried
throughout an examination (Tr. 334), that one-time observation does
not negate the ALJ’s conclusion that the more extreme of Dr.
Scott’s opinions about Plaintiff’s limitations lacked consistency
with other medical evidence of record.
Nor, contrary to Plaintiff’s argument, did the ALJ err by
discounting Dr. Scott’s opinion on the basis that she lacked
expertise in mental health treatment.
(citing Tr. 103).)
(Docket Entry 10 at 12
The regulations expressly require the ALJ to
assess the area of speciality of physicians who offer opinions.
See 20 C.F.R. § 404.1527(c)(5).
Moreover, Dr. Schell’s opinion
that
mental
Plaintiff’s
physical
and
impairments
“adversely
influenced” her ability to perform simple repetitive tasks, form
working relationships with others, and tolerate work stress (Tr.
337), did not render erroneous the ALJ’s decision to discount Dr.
Scott’s opinion.
The ALJ discussed Dr. Schell’s opinion and gave
it “partial weight.”
Schell’s
“adversely
(Tr. 103-04.)
influenced”
The ALJ found that Dr.
opinion
did
not
sufficiently
express actual functional abilities and limitations (Tr. 104), and
additionally noted that Dr. Schell had assigned a Global Assessment
12
of
Functioning
(“GAF”)
for
the
past
year
of
64
and
60
on
examination, indicating only mild symptoms during the past year and
moderate symptoms on examination (Tr. 103, 105 (citing Tr. 336)).6
Under these circumstances, the ALJ’s handling of Dr. Scott’s
opinions provides Plaintiff with no basis for relief.
2.
Credibility Assessment
At the hearing before the ALJ, Plaintiff testified, inter
alia, that knee pain and depression kept her from working, in that
they “limited her to standing no more than 30 minutes at a time,
walking less than a block, sitting no more than one hour at a time,
lifting no more than 1-pounds [sic], and focusing no more than 30
to 40 minutes.”
(Tr. 101.)
The ALJ found that Plaintiff “was not
as limited as alleged, and that she was capable of performing less
than the full range of sedentary work as noted [in the RFC
formulation].”
finding
(Tr. 104.)
Plaintiff’s
Plaintiff argues that the ALJ erred in
symptom
(Docket Entry 10 at 13-14.)
reporting
not
entirely
credible.
Specifically, according to Plaintiff,
the ALJ “ignore[d] notes in the record which contradict [his
6
The GAF uses a 100-point scale to show an individual’s functional level.
American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
32 (4th ed. text revision 2000).
A GAF of 51 to 60 indicates “[m]oderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks)
OR moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or coworkers).” Id. at 34. A GAF of 61 to 70
reflects “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some
difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well,
has some meaningful interpersonal relationships.” Id. A new edition of the
leading treatise discontinued use of the GAF. See American Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013).
13
description of her mental status examinations as ‘unremarkable’].”
(Id. at 13.)
Plaintiff also objects to the ALJ’s reliance on his
finding “that Plaintiff’s ‘conservative’ treatment of her knee pain
suggested that her symptoms were not as severe as alleged.”
at 14.)
(Id.
This assignment of error lacks merit.
Social Security Ruling 96-7p, Policy Interpretation Ruling
Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual's Statements (“SSR 967p”), as applied by the Fourth Circuit in Craig, 76 F.3d at 594-95,
provides a two-part test for evaluating a claimant’s statement
about symptoms.
“First, there must be objective medical evidence
showing ‘the existence of a medical impairment(s) which results
from anatomical, physiological, or psychological abnormalities and
which could reasonably be expected to produce the pain or other
symptoms alleged.’”
Id. at 594 (quoting 20 C.F.R. § 404.1529(b)).
If a claimant meets that threshold obligation, the fact finder
must proceed to part two and evaluate the intensity and persistence
of the claimant’s pain, as well as the extent to which it affects
her ability to work.
Id. at 595.
In making this evaluation, the
fact finder:
must take into account not only the claimant’s statements
about her pain, but also all the available evidence,
including the claimant’s medical history, medical signs,
and laboratory findings, any objective medical evidence
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), and any
other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily
14
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id. (internal citations and quotation marks omitted).
As part of that analysis, the ALJ need not recount each piece
of evidence.
1993).
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir.
However, the ALJ has the responsibility to draw inferences
from, and resolve conflicts in, the record.
Hammond v. Heckler,
765 F.2d 424, 426 (4th Cir. 1985) (citing Smith v. Schweiker, 719
F.2d 723, 725 n.2 (4th Cir. 1984)).
“‘Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
[Commissioner] (or the ALJ).’”
for
that
decision
falls
on
the
Mastro, 270 F.3d at 179 (quoting
Walker v. Bowen, 834 F.2d 635,
640 (7th Cir. 1987)).
When
challenging an ALJ’s exercise of that authority, a plaintiff must
show that the ALJ either ignored crucial portions of the record or
reached an obviously unreasonable conclusion given the evidence in
the record.
Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir.
1984); Basu-Dugan v. Astrue, No. 1:06CV00007, 2008 WL 3413296, at
*6 (M.D.N.C. Aug. 8, 2008) (unpublished).
Here, the ALJ found at part one of the credibility inquiry
that Plaintiff had impairments that could reasonably be expected to
cause her alleged symptoms.
(Tr. 104.)7
Proceeding to part two,
the ALJ found, however, that “[Plaintiff’s] statements concerning
7
Plaintiff has not alleged any error with respect to
credibility inquiry. (See Docket Entry 10 at 13-14.)
15
this part of the
the intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the [RFC]
assessment.”
(Id.)
stated
“physical
that
In making that part two finding, the ALJ
examinations
generally
showed
that
[Plaintiff] was well developed, not in acute distress, alert and
oriented, her mood and affect were appropriate, her knees had good
active range of motion with no ligamentous instability; she was
neurovascularly intact distally with 5/5 strength, and her gait and
station were intact.”
(Id.)
As further concerns reported knee pain, the ALJ observed that
diagnostic reports showed only mild degeneration in one knee.
(Id.)
Additionally, the ALJ “note[d] that [Plaintiff’s] overall
treatment of her physical impairments was generally conservative,
with no hospitalizations or emergency care . . . .”
(Id. (emphasis
added); see also Tr. 102 (“Her treatment has included steroid
injections, wearing braces, and physical therapy for her bilateral
knee impairment,
.
.
.
strengthening exercises
medications.” (internal citations omitted)).)
foregoing
considerations,
the
ALJ
concluded
at
home,
and
In light of the
that
Plaintiff’s
“symptoms from her physical impairments were not as limiting or
severe as alleged and that [she] was capable of functioning at a
higher exertional level.”
(Id. at 104.)
Nonetheless, the ALJ
credited Plaintiff’s symptom reporting as to her physical condition
to a significant extent “by limiting her to sedentary exertional
16
work, with further postural and manipulative restrictions as noted
[in the RFC formulation].”
(Id.)
Similarly, the ALJ emphasized that “[t]he overall evidence of
record showed that [Plaintiff’s] mental impairments placed mild
limitations
functioning,
on
her
and
activities
moderate
of
living
limitations
persistence, or pace.”
(Tr. 105.)
Plaintiff’s
status
“mental
daily
in
and
social
concentration,
The ALJ thereafter described
examinations”
as
“generally
unremarkable, except that her mood was anxious and depressed at
times.”
(Id. (internal citations omitted) (emphasis added).)
“In
addition, the [ALJ] note[d] that [Plaintiff’s] overall treatment of
her
depression
was
conservative,
with
hospitalizations or emergency care.”
medication
(Id.)
and
no
Finally, the ALJ
pointed out that “Dr. Schell, upon examining [Plaintiff], concluded
that [her] mental symptoms had been mild for the previous year.
Nevertheless,
the
diagnosis
depression
of
[ALJ]
took
into
[and]
her
consideration
subjective
[Plaintiff’s]
complaints
and
reasonably accommodated her by limiting her to simple routine
repetitive tasks.”
(Id. (internal citations omitted.))
The foregoing quotations from the ALJ’s decision contradict
Plaintiff’s suggestion that the ALJ unreasonably resolved part two
of the credibility analysis because the ALJ “attacked Plaintiff’s
credibility regarding her depression by stating that her mental
status examinations were ‘unremarkable.’” (Docket Entry 10 at 13.)
17
Rather,
the
ALJ
described
those
examinations
as
“generally”
unremarkable with an explicit exception noting that “at times” such
examinations revealed that Plaintiff suffered from “anxious and
depressed” moods.
(Tr. 105.)
Plaintiff cannot obtain relief by
misstating the ALJ’s findings.
Moreover, the citations offered by
Plaintiff regarding her mental examinations (see Docket Entry 10 at
13-14) do not invalidate the ALJ’s actual findings on point, in
light of the overall evidence of record.
The Court also should decline to grant relief in connection
with Plaintiff’s argument that “it was improper for the ALJ to
impugn Plaintiff’s credibility regarding her knee pain based on the
assertion that she only underwent conservative treatment” (id. at
14).
As an initial matter, Plaintiff has failed to make clear
whether she contends the ALJ wrongly found that Plaintiff’s knee
treatment
qualified
as
“conservative,”
the
ALJ
wrongly
held
Plaintiff’s failure to pursue more aggressive treatment against
her, or the ALJ wrongly did something else.
could deny relief on that ground alone.
(See id.)
The Court
See, e.g., Belk, Inc. v.
Meyer Corp ., U.S., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (“This
issue is waived because [the plaintiff] fails to develop this
argument to any extent in its brief.”); United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (“[A] litigant has an obligation to
spell out its arguments squarely and distinctly, or else forever
hold its peace.” (internal quotation marks omitted)); Nickelson v.
18
Astrue, No. 1:07CV783, 2009 WL 2243626, at *2 n.1 (M.D.N.C. July
27, 2009) (unpublished) (“[A]s [the plaintiff] failed to develop
these arguments in his [b]rief, the court will not address them.”).
To the extent the Court opts to consider this matter further,
it should note that the ALJ never described Plaintiff’s knee
treatment as “conservative”; rather, as quoted above, the ALJ
characterized the “overall treatment of [Plaintiff’s] physical
impairments”
“generally
(not
the
specific
conservative”
(not
treatment
entirely
of
her
knees)
“conservative”)
as
and
emphasized the absence of “hospitalizations or emergency care.”
Plaintiff
has
not
shown
any
statements made by the ALJ.
basis
to
question
those
(See Docket Entry 10 at 14.)8
actual
Nor did
the ALJ ever indicate that Plaintiff’s failure to undergo knee
surgery impacted the credibility finding.
(See Tr. 101-06.)
Finally, the ALJ cited more than sufficient record support for its
partial discounting of Plaintiff’s report as to the disabling
impact of her knee pain, including that “physical examinations
generally showed that [she] was . . . not in acute distress, her
knees
had
good
active
range
of
motion
with
no
ligamentous
instability . . ., and her gait and station were intact” (Tr. 104),
as well as that she had required “no hospitalizations or emergency
8
Moreover, in the context of knee pain, courts have characterized “physical
therapy, cortisone injections, and pain medication” as “conservative treatment,”
Sissom v. Colvin, 512 F. App’x 762, 765-66 (10th Cir. 2013); accord Polynice v.
Colvin, No. 8:12CV1381(DNH/ATB), 2013 WL 6086650, at *10 (N.D.N.Y. Nov. 19, 2013)
(unpublished), aff’d, 576 F. App’x 28 (2d Cir. 2014).
19
care” (id.).
Simply put, as concerns Plaintiff’s reported knee
pain, the ALJ did not ignore crucial parts of the record or render
a patently unreasonable credibility determination.
Shively, 739
F.2d at 989-90; Basu-Dugan, 2008 WL 3413296, at *6.
In sum, Plaintiff has established no reversible error in the
ALJ’s analysis of Plaintiff’s symptom reporting.
3.
Hypothetical Question
Finally,
Plaintiff
asserts
that
“[t]he
ALJ’s
errors
in
determining Plaintiff’s RFC and credibility render the Step 5
determination unsupported by substantial evidence because these
errors resulted in an incomplete hypothetical question asked to the
VE.”
(Docket Entry 10 at 15.)
Plaintiff maintains that, “[i]n
order for a [VE’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.” (Id. (citing Walker
v. Bowen, 990 F.2d 47, 50 (4th Cir. 1989)).)
Plaintiff notes that,
“when the VE was asked a hypothetical question which adopted the
limitations
opined
to
by Dr.
Scott,
Plaintiff could not perform any jobs.
[the
VE]
testified
that
(Id. (citing Tr. 68).)
Plaintiff’s third assignment of error thus relies entirely on
the merits of her first two claims, i.e., that the ALJ erred by
failing to adopt all of Dr. Scott’s proposed restrictions and by
improperly
assessing
Plaintiff’s
20
credibility.
However,
as
discussed in the preceding subsections, those first two assignments
of error lack merit.
Accordingly, Plaintiff’s third assignment of
error also must fail.
III.
CONCLUSION
The record does not provide a basis to grant Plaintiff’s
request for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment (Docket Entry 11) be denied, that Defendant’s Motion for
Judgment (Docket Entry 12) be granted, and that this action be
dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 4, 2015
21
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