KIRKLAND v. COLVIN
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/11/2016; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 9 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) 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
TOMMIE LEE KIRKLAND,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:15CV00086
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Tommie Lee Kirkland, 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
(“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Benefits
The Court has before it the certified
administrative record (cited herein as “Tr. __”), as well as the
parties’ cross-motions for judgment (Docket Entries 9, 13).
For
the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and Supplemental Security Income
(“SSI”),
alleging
a
disability
onset
date
of
May
31,
2008.
(Tr. 243-46.) Upon denial of those applications initially (Tr. 53,
54,
55-68,
69-86,
128-36),
Plaintiff
sought
reconsideration,
resulting in approval of his SSI application effective May 21, 2012
(Tr. 88, 89-106, 317), but denial of his DIB application (Tr. 87,
112-15, 107-18, 139-46). Plaintiff requested a hearing de novo on
his DIB claim before an Administrative Law Judge (“ALJ”) (Tr. 13738).
date
Prior to the hearing, Plaintiff amended his alleged onset
to
June
6,
2010,
his
50th
birthday.
(Tr.
23,
347.)
Plaintiff, his attorney, and a vocational expert (“VE”) attended
the hearing.
(Tr. 21-50.)
The ALJ subsequently determined that
Plaintiff did not qualify as disabled in regards to his claim for
DIB.
(Tr.
5-16.)
The
Appeals
Council
thereafter
denied
Plaintiff’s request for review (Tr. 1-4), 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] last met the insured status requirements of
the . . . Act on September 30, 2010.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from his amended alleged onset
date of June 6, 2010, through his date last insured,
September 30, 2010, the relevant period.
3.
Through the date last insured, [Plaintiff] had the
following severe impairment: osteoarthritis of the left
knee with medial meniscus tear.
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
2
5.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform light
work . . . with exceptions.
He should never climb
ladders,
ropes,
or
scaffolds.
[Plaintiff]
could
occasionally climb ramps and stairs, crouch, kneel, and
crawl, and frequently balance and stoop.
He could
occasionally push and pull foot controls with his left
leg.
. . .
6.
Through the date last insured, [Plaintiff] was
capable of performing past relevant work as a photograph
equipment maintenance technician (DOT 714.281-026). This
work did not require the performance of work-related
activities precluded by [Plaintiff’s] residual functional
capacity.
. . .
In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
capacity, there were other jobs that existed in
significant numbers in the national economy that
[Plaintiff] also could have performed.
. . .
7.
[Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from June 6, 2010, the
amended alleged onset date, through September 30, 2010,
the date last insured.
(Tr. 10-15 (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).
3
In
this case, Plaintiff has not shown entitlement to relief under the
extremely limited review standard.
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
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
4
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
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
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
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
(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,
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).
6
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
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
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.
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
7
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “the ALJ conducted a flawed RFC assessment by failing to
consider medical evidence after the [date last insured (“DLI”)]”
(Docket Entry 10 at 7); and
(2) “the ALJ performed an improper credibility analysis” (id.
at 11).
Defendant
contends
otherwise
and
urges
evidence supports the finding of no disability.
that
substantial
(Docket Entry 14
at 5-19.)
1.
Post-DLI Evidence
Plaintiff first contends that the ALJ erred in formulating the
RFC because she should have evaluated Plaintiff’s post-DLI “2011
[and] pre-May 2012 medical records,” and should not have discounted
the opinions of consultative examiners Anthony J. Smith, Ph.D., and
Maqsood Ahmed, M.D., and physician’s assistant Ashley Grimsley
because such opinions post-dated the DLI.
10
(citing
According
Tr.
to
13,
14,
Plaintiff,
490);
see
“[m]edical
also
(See Docket Entry 10 at
Tr.
444-47,
evaluations
made
483-88.)
after
a
claimant’s insured status has expired are not automatically barred
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.”).
8
from consideration and may be relevant to prove a disability
arising before the claimant’s DLI” (Docket Entry 10 at 9 (citing
Bird v. Commissioner of Soc. Sec. Admin., 699 F.3d 337, 340-41 (4th
Cir.
2012)),
particularly
where
the
post-DLI
evidence
is
“reflective of a possible earlier and progressive degeneration”
(id. at 10 (citing Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir.
1969)).
Plaintiff
thus
argues
that
the
ALJ
erred
by
not
considering the further progression of Plaintiff’s degenerative
disease in both knees between his last pre-DLI medical evaluation
in May 2008 and his DLI in September 2010.
(Id. at 10-11.)
Finally, Plaintiff asserts that, under Social Security Ruling 8320, Titles II and XVI: Onset of Disability, 1983 WL 31249, at *3
(1983) (“SSR 83-20”), the ALJ should have called on a medical
expert to determine the proper onset date of disability.
11.)
(Id. at
Plaintiff’s arguments ultimately lack merit.
The Fourth Circuit has held “that post–DLI medical evidence
generally
is
admissible
in
[a
Social
Security]
disability
determination in such instances in which that evidence permits an
inference of linkage with the claimant’s pre–DLI condition.” Bird,
699 F.3d at 341 (emphasis added) (citing Moore, 418 F.2d at 1226).
In
Moore,
the
Fourth
Circuit
found
such
linkage
in
medical
evaluations post-dating the claimant’s DLI that “reflect[ed] . . .
a possible earlier and progressive degeneration.”
at 1226.
Moore, 418 F.2d
Bird further held that “retrospective consideration of
9
medical evidence is especially appropriate when corroborated by lay
evidence,” such as the claimant’s testimony. Bird, 699 F.3d at 342
(citing Moore, 418 F.2d at 1226).
As a starting point in the analysis, the ALJ here stated that
she had engaged in “careful consideration of the entire record”
(Tr. 11 (emphasis added)), and referenced in her decision both the
two consultative examinations performed in 2012 and Ms. Grimes’
2013 letter (see Tr. 13-14). Thus, Plaintiff’s argument boils down
to a complaint that the ALJ did not expressly discuss Plaintiff’s
medical records from January 2011 to May 2012, rather than an
allegation that the ALJ failed to consider any post-DLI evidence
altogether.
The post-DLI evidence the ALJ failed to discuss consists of
four visits to the Lincoln Community Health Center in 2011 for
conservative treatment of Plaintiff’s degenerative knee disease
(see Tr. 410-25), an orthopedic consultation in April 2012 for knee
and hip
pain
and
degeneration
(see
Tr.
479-81),
and
records
relating to his left total knee arthroplasty on May 4, 2012, and
post-surgical follow-up and physical therapy (see Tr. 426-43, 45169).
Because the above-described evidence reflected treatment of
Plaintiff’s degenerative left knee condition (which clearly existed
prior to Plaintiff’s DLI, see, e.g., Tr. 377-79), the ALJ should
have discussed that evidence and its relevance, if any, to the
state
of
Plaintiff’s
knee
condition
10
from
June
30,
2010,
to
September 30, 2010.
The post-DLI records show that Plaintiff’s
knee degeneration had progressed from its state in May 2008 (when
Plaintiff last sought treatment for his knees pre-DLI) (compare Tr.
377-79, with Tr. 425, 481), which leaves open the possibility that
Plaintiff’s knee impairment had worsened to some degree even by
September 30, 2010.
However, even assuming the ALJ erred by failing to discuss
Plaintiff’s medical evidence from January 2011 to May 2012, any
such error remains harmless under the circumstances of this case.
As argued by the Commissioner, notwithstanding the ALJ’s failure to
discuss
the
above-described
post-DLI
evidence,
she
“did
not
underestimate the severity of Plaintiff’s left knee impairment.”
(Docket Entry 14 at 10.)
In other words, Plaintiff does not show
how an express discussion by the ALJ of the evidence in question
would have led to a different RFC and/or a different outcome at
steps four and five of the SEP.
(See Docket Entry 10 at 7-11.)
The ALJ found that Plaintiff suffered from severe osteoarthritis of
the left knee with a medical meniscus tear at step two (see Tr.
10), and clearly accounted for that impairment in the RFC by
limiting Plaintiff to light work5 with no climbing of ladders,
ropes, or scaffolds, occasional climbing of ramps and stairs,
occasional crouching, kneeling, and crawling, frequent balancing
and stooping, and occasional pushing and pulling of foot controls
5
“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects up to 10 pounds.” 20 C.F.R. § 404.1567(b).
11
with the left leg (see Tr. 11).6
Significantly, in adopting an RFC
at the light level of exertion, the ALJ explicitly rejected a state
agency physician’s
opinion
(arising
from
Plaintiff’s
previous
application for DIB and SSI) that, as of September 2, 2008,
Plaintiff remained capable of a full range of medium work (see Tr.
13
(citing
Tr.
384-91)),
thus
implicitly
acknowledging
that
Plaintiff’s knee condition had worsened since September 2008.
Moreover, the ALJ evaluated Plaintiff’s testimony concerning the
impact of his knee impairment on his ability to function during the
relevant period in 2010 and found his testimony “not credible.”
(Tr. 12; see also Tr. 39-41.)
For the reasons explained in the
context of Plaintiff’s second issue on review, substantial evidence
supports the ALJ’s credibility analysis.
In short, although the ALJ erred by failing to discuss some of
Plaintiff’s post-DLI medical treatment from January 2011 to May
2012, Plaintiff has failed to show how such error prejudiced him.
See Morgan v. Barnhart, 142 Fed. App’x 716, 723 & n.6 (4th Cir.
2005) (applying harmless error standard in Social Security appeal);
Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle
6
Plaintiff’s argument that the ALJ failed to “consider the progression of [his]
right knee impairment” misses the mark. (Docket Entry 10 at 11.) Although
Plaintiff complained of right knee pain on two occasions prior to his DLI (see
Tr. 358, 377), his medical providers did not take x-rays or order other
diagnostic tests of his right knee and did not diagnose Plaintiff with any right
knee impairment prior to his DLI (see id.).
In fact, on May 2, 2008, the
physician opined that Plaintiff’s “odd” gait due to his left knee pain likely
caused his right knee pain (and lower back pain), rather than degeneration. (Tr.
377.) Thus, any post-DLI treatment for a degenerative right knee condition did
not link back to any documented, pre-DLI condition.
12
of administrative law or common sense requires us to remand a
[Social Security] case in quest of a perfect opinion [from an ALJ]
unless there is reason to believe that the remand might lead to a
different result.”); Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.
1988) (“Procedural perfection in administrative proceedings is not
required.
This court will not vacate a judgment unless the
substantial rights of a party have been affected.”).
Similarly, the Court should find no prejudicial error with
respect to the ALJ’s evaluation of the two 2012 consultative
examinations and the 2013 opinions of Ms. Grimsley.
(See Tr. 13-
14.)
conducted
In
June
2012,
Anthony
J.
Smith,
Ph.D.,
a
consultative psychological evaluation of Plaintiff, diagnosed him
with depressive disorder, and opined that Plaintiff had poor memory
and concentration, below average intellectual functioning, and
likely could not interact with peers or respond appropriately to
supervision.
(See Tr. 444-47.)
Two months later, Dr. Maqsood
Ahmed performed a consultative physical examination of Plaintiff,
noted tenderness in Plaintiff’s hips and a reduced range of motion
in Plaintiff’s hips and knees, assessed a history of hip and knee
surgeries and a history of anxiety, and opined that Plaintiff could
walk short distances without a cane, could perform activities of
daily living with some difficulty, and would have limitations on
lifting and carrying heavy objects and walking for prolonged
periods, but would not have any limits on sitting or standing.
13
(See Tr. 483-88.)
In April 2013, Ms. Grimsley stated in a letter
that Plaintiff had undergone bilateral total knee arthroplasties,
had “severe bone on bone osteoarthritis of his hips,” was “awaiting
surgery for his hips,” and could not participate in community
service due to “severe limitations in his movements.”
(Tr. 490.)
The ALJ discounted the two consultative examiners’ opinions on the
sole basis that such opinions lacked relevance because they postdated the DLI by over one and a half years, and rejected Ms.
Grimsley’s 2013 letter opinions because the opinion post-dated the
DLI by three years (and because Ms. Grimsley did not constitute an
“acceptable medical source” under the regulations).
(See Tr. 13-
14.)
With
regard
to
Dr.
Smith’s
2012
opinions
concerning
Plaintiff’s depressive disorder, such opinions do not link to any
pre-DLI evidence, as Plaintiff did not, on his Disability Reports
(see Tr. 284, 295, 321), before the ALJ (see Tr. 24-43), or in
support of his instant Motion (see Docket Entry 10 at 7-14), take
the position that he suffered from depression during the relevant
period from June to September 2010; nor does the record reflect any
treatment for depression during that period. Thus, the ALJ did not
err by discounting Dr. Smith’s opinions solely because they postdated the DLI.
In contrast, both Dr. Ahmed’s and Ms. Grimsley’s opinions
concern, at least in part, the status and impact of Plaintiff’s
14
degenerative knee condition.
(See Tr. 483-88, 490.)
Thus, that
evidence links to pre-DLI evidence and reflects the progression of
Plaintiff’s knee degeneration, such that Bird would likely preclude
the ALJ from summarily dismissing it simply because it post-dated
the DLI.
Bird, 699 F.3d at 341.
Nevertheless, the Court should construe any such error by the
ALJ as harmless.
Plaintiff has offered no argument regarding how
the ALJ’s giving more weight to Dr. Ahmed’s opinions would have had
any impact on the RFC or on the ALJ’s ultimate conclusions at steps
four
and
five.
(See
Docket
Entry
10
at
10.)7
Under
such
circumstances, Plaintiff has not shown error by the ALJ in regards
to her evaluation of Dr. Ahmed’s opinions that affected the outcome
of this case.
See 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)).
With regard to Ms. Grimsley, two factors preclude a finding
that any potential Bird error by the ALJ prejudiced Plaintiff.
First, the ALJ also discounted Ms. Grimsley’s opinions because, as
a physician’s assistant, she did not constitute an “acceptable
medical source” under 20 C.F.R. § 404.1513(a) (Tr. 14), thus
providing
a
valid
basis,
apart
7
from
any
DLI-based
reason
Dr. Ahmed, although noting Plaintiff’s “long history of chronic pain mostly in
his knees” (Tr. 488), did not give any indication that his functional limitations
for Plaintiff should have retrospective effect (see Tr. 483-88).
15
potentially prohibited under Bird, for discounting Ms. Grimsley’s
opinions.8
Second, Plaintiff has failed to show how even fully
crediting Ms. Grimsley’s opinions would have changed the outcome in
this case (see Docket Entry 10 at 10), and a careful review of Ms.
Grimsley’s statements suggests why:
After providing information
regarding the status of Plaintiff’s knee and hip surgeries, Ms.
Grimsley
stated:
“Currently,
due
to
[Plaintiff’s]
medical
conditions, he is unable to participate in community service due to
his severe limitations in his movements.”
added).)
(Tr. 490 (emphasis
Ms. Grimsley’s use of the word “[c]urrently” indicates
that, although Plaintiff suffered limitations at that time, they
did not stem from an impairment of long-standing or expected
permanency, let alone from a progressive, ongoing degeneration
dating to a period before his DLI.
(Id.)
Lastly, Plaintiff’s argument that the ALJ should have called
a medical expert to determine an onset date under SSR 83-20 fails.
Because the ALJ found that Plaintiff did not qualify as disabled at
any time during the relevant period (see Tr. 15), no need existed
for the ALJ to go further for purposes of the DIB claim.
See Key
v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997) (“Since there was no
8
Notably, the record neither reflects nor does Plaintiff argue (see Docket Entry
10 at 10) that Ms. Grimsley worked so closely under a physician’s supervision
that she offered her opinions while acting as the agent of an acceptable medical
source. See generally Taylor v. Commissioner of Soc. Sec. Admin., 659 F.3d 1228,
1234 (9th Cir. 2011) (holding that nurse practitioner could qualify as
“acceptable medical source” where she worked under physician’s close supervision
such that she acted as physician’s agent).
16
finding that the claimant is disabled . . ., no inquiry into onset
date is
required.
The
only
necessary
inquiry
is
whether
the
claimant was disabled prior to the expiration of his insured
status, and we agree that the ALJ correctly determined he was
not.”); McDonald v. Astrue, Civ. Action No. 10-10896-DPW, 2011 WL
3562933, at *10 (D. Mass. Aug. 15, 2011) (unpublished) (“[T]he ALJ
was not under any obligation to apply SSR 83–20 in this case.
A
determination concerning the onset of disability does not need to
be made unless an individual has been determined at some point to
have been disabled during the insured period.
Thus, if, as here,
the ALJ finds that the claimant was not disabled during the
relevant period, there is no requirement that the ALJ determine the
onset date.” (internal brackets, citation, and quotation marks
omitted) (emphasis added)).
In sum, Plaintiff’s first assignment of error does not warrant
relief.
2.
Credibility Analysis
Plaintiff’s second and final assignment of error asserts that
the ALJ improperly discounted Plaintiff’s credibility. (See Docket
Entry 10 at 11-14.)
In particular, Plaintiff maintains that the
ALJ should not have discounted Plaintiff’s credibility based on the
“gap in [medical] treatment from May 2008 until January 2011” (id.
at 12 (citing Tr. 12)), because “‘[a] claimant cannot be penalized
for failing to seek treatment [he] cannot afford’” (id. (quoting
17
Lovejoy
v.
Heckler,
790
F.2d
1114,
1117
(4th
Cir.
1986)).
Plaintiff also challenges the ALJ’s “attack[]” on Plaintiff’s
credibility based on “his ‘very dramatic presentation at the
hearing.’” (Id. at 14 (citing Tr. 12).)
According to Plaintiff,
because at the time of the hearing, he had already qualified as
disabled on his SSI claim (effective May 21, 2012), had undergone
bilateral total knee arthroplasties and a left hip replacement, and
was scheduled for a right hip replacement, any pain behaviors
during
the
hearing
should
have
“enhance[d]
credibility, [and] not detract[ed] from it.”
[Plaintiff’s]
(Id.)
Plaintiff’s
arguments fail to demonstrate entitlement to relief.
“A claimant may not be penalized for failing to seek treatment
[]he cannot afford; ‘[i]t flies in the face of the patent purposes
of the Social Security Act to deny benefits to someone because he
is too poor to obtain medical treatment that may help him.’”
Lovejoy, 790 F.2d at 1117 (quoting Gordon v. Schweiker, 725 F.2d
231, 237 (4th Cir. 1984)). Social Security Ruling 96-7p, Titles II
and XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, 1996 WL 374186 (July 2,
1996) (“SSR 96-7p”) provides that:
[T]he adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from
a failure to seek or pursue regular medical treatment
without first considering any explanations that the
individual may provide . . . that may explain infrequent
or irregular medical visits or failure to seek medical
treatment. . . . For example:
18
. . .
*The individual may be unable to afford treatment
and may not have access to free or low-cost medical
services.
SSR 96-7p, 1996 WL 374186, at *7-8 (emphasis added). However, even
if a claimant cannot afford medical treatment, he must “show that
he has exhausted all free or subsidized sources of treatment and
document his financial circumstances before inability to pay will
be considered good cause.”
Gordon, 725 F.2d at 237.
Here, the ALJ’s consideration of Plaintiff’s failure to seek
treatment between May 2008 and January 2011 complied with SSR 96-7p
and Fourth Circuit precedent.
The ALJ did not summarily discount
Plaintiff’s credibility due to the lack of medical treatment
between
May
2008
and
January
2011;
rather,
she
considered
Plaintiff’s statements that he did not have insurance and could not
afford treatment during that time and found those statements not
credible:
I asked about the notable gap in [Plaintiff’s] medical
treatment from May 2008 until January 31, 2011 (which his
representative concedes). He claimed it was because he
didn’t have insurance. However, this is not credible for
two reasons. First, I cannot ignore the timing of his
Workers Comp[ensation] settlement. He received $23,000
on October 23, 2008[,] and then didn’t seek medical
treatment for over two years.
In addition to the
evidence from that time period showing little wrong in
the nature of physical impairments, I simply do not
believe [Plaintiff’s] explanation that he couldn’t afford
to go to the doctor when he had just received a
considerable financial settlement (for a lumbar and left
knee sprain, after which he was released to go back to
full work duty with no restrictions).
19
(Tr. 12 (internal citation to the administrative record omitted).)
Although
regarding
Plaintiff
his
may
disagree
credibility,
with
the
“credibility
ALJ’s
conclusions
determinations
‘emphatically the province of the ALJ, not the court.’”
are
Vest v.
Colvin, No. 5:13CV00067, 2014 WL 4656207, at *2 (W.D. Va. Sept. 16,
2014) (unpublished) (citing Dunn v. Colvin, 973 F. Supp. 2d 630,
649 (W.D. Va. 2013)).
So long as the record provides substantial
evidence to support the ALJ’s credibility analysis and the ALJ
complies with applicable law, as she did here, the reviewing court
should not disturb those findings.
Similarly, the Court should find nothing improper about the
ALJ’s consideration of Plaintiff’s “very dramatic presentation” at
the hearing as part of the credibility analysis.
(Tr. 12.)
An ALJ
may consider a claimant’s demeanor and pain behaviors as one
component of the credibility evaluation.
See Shively v. Heckler,
989-90
ALJ’s
(4th
Cir.
1984)
(holding
that
observation
that
claimant “appeared to maximize the pain at the hearings” should “be
given great weight” because ALJ “had the opportunity to observe the
demeanor . . . of the claimant”).
Although Plaintiff argues that
such behaviors should have “enhance[d]” his credibility rather than
“detract[ed]” from it (Docket Entry 10 at 14), as the ALJ noted
(see Tr. 35), the amount of pain Plaintiff experienced on the date
of
the
hearing
(October
3,
2013),
after
two
total
knee
arthroplasties and a hip replacement, had little relevance to
20
Plaintiff’s
pain
levels
and
resulting
limitations
during
the
relevant period in this case in 2010.
In conclusion, Plaintiff has not shown prejudicial error
arising out of the ALJ’s evaluation of Plaintiff’s credibility.
III. CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment
on
the
Pleadings
(Docket
Entry
9)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 13)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 11, 2016
21
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