TUTWILER V. COLVIN
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION as to SANDRA DENISE TUTWILER, signed by MAG/JUDGE JOI ELIZABETH PEAKE on 9/27/2016. RECOMMENDED that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion to Reverse the Decision of the Commissioner [Doc. # 8 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 10 be GRANTED, and that this action be DISMISSED with prejudice. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SANDRA DENISE TUTWILER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
1:15CV170
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Sandra Denise Tutwiler (“Plaintiff”) 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 protectively filed her applications for Disability Insurance Benefits and
Supplemental Security Income Benefits on November 2, 2011, alleging a disability onset date
of October 27, 2011. (Tr. at 10, 184-92.) 1 Her applications were denied initially and upon
reconsideration. (Tr. at 71-122, 125-42.) Thereafter, Plaintiff requested an administrative
1
Transcript citations refer to the Sealed Administrative Record [Doc. #6].
hearing de novo before an Administrative Law Judge (“ALJ”). (Tr. at 143-51.) Following the
subsequent hearing on July 22, 2013, the ALJ issued a decision finding Plaintiff not disabled
within the meaning of the Act (Tr. at 10-18), and, on December 23, 2014, the Appeals Council
denied Plaintiff’s request for review, thereby making the ALJ’s conclusion the Commissioner’s
final decision for purposes of judicial review. (Tr. at 1-5.)
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 [the] 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).
2
“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 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
“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).
2
3
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
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 at step three 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.
“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.
3
4
However, if the claimant establishes an inability to return to prior work, the 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 has not engaged in substantial 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, radiculopathy, headaches, and
obesity. (Tr. at 12.) The ALJ found at step three that none of these impairments, singly or in
combination, met or equaled a disability listing. Therefore, the ALJ assessed Plaintiff’s RFC
and determined that she could “lift, carry, push, or pull 20 lbs. occasionally and 10 lbs.
frequently,” “stand, walk, or sit for 6 hours of an 8-hour workday,” and “occasionally climb
ladders and stoop.” He also found that Plaintiff “must avoid concentrated exposure to
hazards.” (Tr. at 13.)
At step four, the ALJ determined that the demands of Plaintiff’s past relevant work as
a cashier/checker and a t-shirt inspector did not exceed her RFC. (Tr. at 16.) The ALJ also
5
made an alternative finding at step five that Plaintiff could perform other jobs which exist in
significant numbers in the national economy. (Tr. at 17.) Accordingly, he concluded that
Plaintiff was not disabled under the Act. (Tr. at 18.)
Plaintiff now argues that substantial evidence fails to support the ALJ’s decision.
Specifically, she claims that the ALJ failed to properly assess her RFC by (1) failing to assign
proper weight to the opinions of Plaintiff’s treating physicians, (2) “overlook[ing] several of
Plaintiff’s medical appointments in concluding that a [g]ap in her treatment was evidence that
her symptoms were not severe and persistent,” (3) failing to consider all of Plaintiff’s severe
impairments and (4) failing to consider the combined effect of all of her impairments on her
RFC. (Pl.’s Br. [Doc. #9] at 2.)
A.
Treating Physician Opinions
Plaintiff first contends that the ALJ failed to weigh the opinions of her treating primary
care physicians, Dr. Trevor Allison and Dr. Robert McNeill 4, in accordance with Social
Security Ruling (“SSR”) 96-2p and 20 C.F.R. §§ 404.1527(c) and 416.927(c). These regulations
generally require an ALJ to give controlling weight to the well-supported 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.
4
Dr. McNeill’s opinion is co-signed by Kimberly Rogers, PA.
6
20 C.F.R. § 404.1527(c). However, if a treating source’s opinion is not “well-supported by
medically acceptable clinical and laboratory diagnostic techniques or if it 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 *2; 20 C.F.R. § 404.1527(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. §§ 404.1527(c)(2)(i)-(c)(6) and
416.927(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 opinion with the record, (6) whether the source is a
specialist, and (7) any other factors that may support or contradict the opinion. Moreover,
opinions by physicians regarding the ultimate issue of whether a plaintiff is disabled within the
meaning of the Social Security 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)(1),
416.927(d)(1).
Where an ALJ declines to assign controlling weight to a medical opinion, he must
“‘explain in the decision the weight given’ thereto and ‘give good reasons in his . . . decision
for the weight.’” Chirico v. Astrue, No. 3:10CV689, 2011 WL 6371315, at *5 (E.D. Va. Nov.
21, 2011) (unpublished) (quoting 20 C.F.R. § 404.1527(c)(2)). “This requires the ALJ to
provide sufficient explanation for ‘meaningful review’ by the courts.” Thomas v. Comm’r of
Soc. Sec., No. Civ. WDQ-10-3070, 2012 WL 670522, at *7 (D. Md. Feb. 27, 2012)
(unpublished) (citing Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009);
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011)).
7
Even “implicit
assignments of weight can support meaningful review” so long as the ALJ’s decision “make[s]
clear that she ‘recognized and evaluated the treating relationships’ of medical sources” in the
context of the evidence as a whole. Thomas, 2012 WL 670522, at *7 (citations omitted).
In the present case, Dr. Allison completed a one-page medical statement form
specifically designed to identify Plaintiff’s physical abilities and limitations for the purpose of
her disability claim. In completing this form, Dr. Allison indicated that, as of April 2, 2012,
Plaintiff’s back pain limited her to working two hours per day. However, he then posited that
Plaintiff could sit for a total of four hours and stand for two hours in a workday, although she
could only sit and stand for 30 and 15 minutes at one time, respectively. He further opined
that Plaintiff could lift no more than 10 pounds occasionally and 5 pounds frequently and that
she had further postural and environmental limitations in each of the 17 additional categories
listed on the form. Dr. Allison concluded that Plaintiff had a long history of severe back pain
and was able to work for years with the help of pain medication, but she was “no longer able
to work.” (Tr. at 349.)
Dr. Allison’s colleagues, Dr. McNeill and Kimberly Rogers, completed a similar 3-page
medical statement form on June 14, 2013. The 2013 statement included checklists of
symptoms relating to low back pain, headaches, and leukocytosis, as well as a functional
limitation section in which the providers could circle various options. (Tr. at 394-96.) Like
Dr. Allison, Dr. McNeill and Ms. Rogers indicated that Plaintiff could work no more than 2
hours per day. (Tr. at 396.) They also opined that Plaintiff could stand and sit no more than
an hour each in a given workday, with further restriction to sitting and standing no more than
30 and 15 minutes at a time; could lift no more than five pounds occasionally (and no weight
8
frequently); and suffered headaches of several hours duration several times a week, during
which she was not able to work at all. (Tr. at 394-96.) In closing, Dr. McNeill and Ms. Rogers
stated that Plaintiff “has always been appropriate and followed instruction.” (Tr. at 396.)
The ALJ recounted the above opinions, but ultimately assigned only “some” weight to
Dr. Allison’s opinion and “limited” weight to Dr. McNeill and Ms. Rogers’. (Tr. at 15-16.)
With regard to Dr. Allison’s opinion, the ALJ noted that the opinion (1) “inconsistently limits
the claimant to 2 hours of work per day, while stating that he [sic] can sit for 4 hours of a
workday, and (2) that “it is inconsistent with the preponderance of the evidence of record[,]
including the findings of the claimant’s treatment and examination records and her reported
activities.” (Tr. at 16.) Plaintiff now argues that the ALJ “seized on [a] single inconsistency
to discount the medical opinion formed by Dr. Allison in its entirety.” (Pl.’s Br. at 3.) This
challenge ignores the additional inconsistencies clearly identified by the ALJ throughout his
RFC discussion as a whole, which include (1) Plaintiff’s assertion that she can sit for 30 to 60
minutes and stand for 45 minutes at a time (Tr. at 14, 46, 47); (2) “minimal” and “mild” lumbar
MRI findings (Tr. at 14, 275-76); (3) documented clinical findings including “normal gait,
normal range of motion of the extremities, 5/5 motor strength in the extremities, normal
muscle tone without atrophy, normal tandem and heel/toe walking ability, and no focal
neurological deficits” (Tr. at 15, 281, 283, 296, 338); (4) Plaintiff’s ability to continue working
for approximately a year with her impairments prior to her alleged onset date, despite no
objective evidence of a significant worsening of her conditions over time (Id.); and (5) the
opinion of the state agency physician, Dr. Woods, that, as of April 27, 2012, Plaintiff could
perform a reduced range of medium work (Tr. at 15, 102).
9
Moreover, in considering the preceding factors contrary to the severe limitations
posited by Dr. Allison, the ALJ did not ignore evidence more supportive of Plaintiff’s
allegations. All of the evidence was reviewed and considered. In short, the ALJ evaluated and
weighed Dr. Allison’s opinion using the factors provided in 20 C.F.R. §§ 404.1527(c)(2)(i)(c)(6) and 416.927(c)(2)(i)-(c)(6), and did not rely on a single, internal inconsistency as Plaintiff
alleges.
To the extent the similar opinion of Dr. McNeill and Ms. Rogers includes limitations
relating to Plaintiff’s back impairment, the ALJ discounted the posited limitations for the
reasons set out above, again citing the inconsistency of such extreme limitations “with the
preponderance of evidence of record[,] including [Plaintiff’s] treatment and examination
records.” (Tr. at 14-16.) In addition, the ALJ limited the weight assigned to Dr. McNeill and
Ms. Rogers’ opinion “because the opinion relies largely on [Plaintiff’s] subjective complaints”
and “because their opinion states that [Plaintiff] has followed treatment recommendations,
which is inconsistent with prior treatment records from the facility in which they worked.”
(Tr. at 16) (citing Tr. at 297).
With respect to Plaintiff’s failure to follow treatment recommendations, the ALJ’s
decision notes Plaintiff’s failure to stop drinking caffeine, discontinue her use of Goody’s
Powder, and reduce her use of narcotics and other over-the-counter headache medications as
strongly recommended by her treating neurologist, who noted that all of these behaviors are
known to cause or increase headache activity. (Tr. at 15, 296-97, 329.) Plaintiff, in turn, argues
that, absent evidence that these measures would have provided Plaintiff relief from her
headaches, the ALJ was not entitled to rely upon her failure to comply as a basis for
10
discounting Dr. McNeill and Ms. Rogers’ opinion that Plaintiff’s headaches prevented her
sustaining gainful employment. (Pl.’s Br. at 4.) This argument not only attempts to improperly
shift the burden of proof to Defendant, but also relies on circular logic. Plaintiff suggests that
a patient need not follow a physician’s treatment recommendations until it can be shown that
the recommended treatment will be successful, when it is clearly impossible for the treatment
to be successful until it is tried. Moreover, the ALJ did not reduce his reliance on Dr. McNeill
and Ms. Rogers’ opinions due to Plaintiff’s failure to comply with treatment, but due to the
inconsistency of their assertion that she always complied with treatment recommendations,
which cast her providers’ other statements, as well as the bases for them, into doubt. (See Tr.
at 16.) At end, the ALJ’s decision, read as a whole, demonstrates that the ALJ evaluated and
weighed Dr. McNeill and Ms. Rogers’ opinion and explained his rationale for doing so in a
manner which supports meaningful review. It is not this Court’s role to re-weigh the evidence
or conduct a de novo review. Instead, where reasonable minds could differ, the ALJ is
responsible for weighing the relevant evidence. The ALJ did so here and explained the
determination, and substantial evidence supports that determination. Accordingly, the Court
finds no basis for remand.
B.
Gap in Medical Treatment
In her second assignment of error, Plaintiff asserts that the ALJ improperly discounted
her credibility based on an alleged gap in medical treatment between August 2012 and June
2013. Specifically, the ALJ found that “[t]he absence of treatment for such a significant
portion of the period under consideration indicates that [Plaintiff’s] symptoms may not have
been as persistent as she contended at the hearing.” (Tr. at 15.)
11
Plaintiff contends that “[t]here were documented appointments during this time frame,
including one on December 12, 2012, wherein the Plaintiff received prescriptions for
Hydrocodone and Trazadone to treat her DDD and headaches.” (Pl.’s Br. at 8) (citing Tr. at
378-81). The record does reflect a single visit during this time frame: a visit with a Physician’s
Assistant on December 5, 2012, for a medication refill. (Tr. at 378-81.) Plaintiff now suggests
that, by overlooking this appointment, the ALJ mischaracterized the record “in an effort to
discredit Plaintiff’s testimony.” (Pl.’s Br. at 8.) However, because the evidence omitted from
the ALJ’s decision consists wholly of a single appointment for medication adjustments and/or
refills, that single visit does not undermine the ALJ’s general observation that Plaintiff’s
symptoms may not have been as persistent as she contended, given the limited treatment
reflected in the record for an extended period of time.
Moreover, to the extent Plaintiff is attempting to raise a larger challenge to the ALJ’s
credibility determination, the Court notes that the ALJ’s analysis offered numerous, specific
reasons for discounting Plaintiff’s credibility. (See Tr. at 14-15); Hawley v. Colvin, No. 5:12CV-260-FL, 2013 WL 6184954, at *17 (E.D.N.C. Nov. 25, 2013). In particular, the ALJ’s
credibility discussion cited “minimal and mild” MRI findings which were “incongruent with
the level of limitation purported by [Plaintiff]” (Tr. at 14); “treatment records document[ing]
findings such as normal gait, normal range of motion of the extremities, 5/5 motor strength
in the extremities, normal muscle tone without atrophy, normal tandem and heel/toe walking
ability, and no focal neurological deficits” (Tr. at 15); Plaintiff’s “ability to work for [a] year
with the aforementioned conditions prior to the alleged onset date” (Id.); and Plaintiff’s
“refusal to comply fully with instructions to stop using [caffeine, Goody’s powder, and daily
12
narcotics]” to ameliorate her headaches (Id.). Indeed, Plaintiff never directly challenges the
ALJ’s overall credibility determination or points to any evidence, aside from her own
testimony, to refute the rationale recounted above.
In challenging the ALJ’s reliance on a gap in medical treatment, Plaintiff further notes
her lack of health insurance during the time in question, which limited her ability to seek
medical care “as much as may otherwise be prudent.” (Id.) Courts in this District have noted
that
“[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:
...
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.
Kirkland v. Colvin, No. 1:15CV00086, 2016 WL 126754, at *7 (M.D.N.C. Jan. 11, 2016).
13
In the instant case, Plaintiff specifically testified that her sister pays for her routine
medical treatment, but that financial constraints have prevented her from obtaining an updated
MRI. (Tr. at 43-44.) Although Plaintiff also asserted that her doctors are unable to do more
in terms of treatment due to cost issues, she denied any discussion with her providers as to
what further treatment might entail.
In the meantime, “the treatment is mainly pain
medication.” (Tr. at 44.) 5 Based on this testimony, along with Plaintiff’s single appointment
to seek medication refills during the “gap” period in question, it does not appear that the ALJ
penalized Plaintiff for not obtaining treatment she could not afford. Rather, the ALJ merely
considered Plaintiff’s minimal treatment during this time as one factor, among the many
chronicled above, indicating that her pain was not as intractable or disabling as she alleged.
As such, the Court finds no error.
C.
Additional Severe Impairments
Plaintiff next contends that the ALJ erred in failing to include leukocytosis as a severe
impairment at step two of the sequential analysis. (Pl.’s Br. at 8-9.) The ALJ noted at step
two that Plaintiff has been diagnosed with leukocytosis (elevated white blood cell count), as
well as muscle spasms and chromosomal abnormalities, but he ultimately concluded that “the
evidence of record does not indicate that any of the aforementioned conditions persisted at a
level that caused more than minimal functional limitations for a time-period sufficient for a
finding of severity.” (Tr. at 12.) In challenging this finding, Plaintiff points to the diagnosis
of leukocytosis and to self-reports of fatigue and daytime somnolence. (Pl.’s Br. at 9.)
Notably, Plaintiff refused any procedures or physical therapy referrals for her back pain even when covered
by insurance. (Tr. at 255, 321.)
5
14
However, no evidence ties Plaintiff’s reported symptoms to her leukocytosis or indicates the
need for any additional limitations as a result of this impairment. 6
Furthermore, “even assuming [Plaintiff’s leukocytosis was] severe, such error does not
necessitate remand. As long as the ALJ determines that the claimant has at least one severe
impairment and proceeds to discuss all of the medical evidence, any error regarding failure to
list a specific impairment as severe at step two is harmless.” McClain v. Colvin, No.
1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014) (citations omitted). 7 In the
present case, the ALJ identified four severe physical impairments at step two of the sequential
analysis (Tr. at 12), and the ALJ reviewed all of the medical evidence of record in determining
Plaintiff’s RFC. Plaintiff fails to explain how the addition of leukocytosis to the list at step
In fact, when specifically asked if Plaintiff “suffer[s] from persistent or relapsing chronic fatigue that is new
of had a definite onset, is not due to ongoing exertion, is not substantially alleviated by rest, and substantially
reduces occupational, educational, social, or personal activities” as a result of her leukocytosis, Dr. McNeill
and Ms. Rogers indicated that Plaintiff did not. (Tr. at 395.)
6
Step two is a threshold determination of whether claimants have a severe impairment (or
combination of impairments) that meets the twelve-month duration requirement and
significantly limits their ability to do basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii) (2010). If the Commissioner finds no severe impairments, the claimant is not
disabled and the analysis does not proceed to the other steps. Id. However, if a claimant does
have a severe impairment or combination of impairments, the ALJ must consider the effects
of both the severe and non-severe impairments at the subsequent steps of the process,
including the determination of RFC. See 20 C.F.R. § 404.1523 (2010); SSR 96–8p, 1996 WL
374184, at * 5 (1996); SSR 86–8, 1986 WL 68636, at *5 (1986). If the ALJ proceeds to discuss
and consider the non-severe impairment at subsequent steps, there is no prejudice to the
claimant. See Thomas v. Commissioner, Soc. Sec. Admin., No. SAG–11–3587, 2013 WL
210626, at *2 (D. Md. Jan. 17, 2013) (finding harmless error where ALJ continued with
sequential evaluation process and considered both severe and non-severe impairments);
Kenney v. Astrue, No. CBD–10–1506, 2011 WL 5025014, at *5 (D. Md. Oct. 20, 2011)
(declining to remand for failure to classify an impairment as severe because it would not
change the result).
Rivera v. Astrue, No. CBD-12-1095, 2013 WL 4507081, at *7 (D. Md. Aug. 22, 2013).
7
15
two would change the determination or require restrictions beyond those included in the RFC.
Accordingly, substantial evidence supports the ALJ’s determination.
D.
Combination of Impairments
In a final, related argument, Plaintiff contends that the ALJ failed to consider the
combined effects of all of her impairments, both severe and nonsevere, on her RFC. In
making this challenge, Plaintiff essentially re-states her previous three contentions. She asserts
that the RFC “grossly overstates [Plaintiff’s] physical abilities and wholly disregards the adverse
effect of Plaintiff’s headaches (and her leukocytosis) when combined with the physical
limitations caused by her bad back.” (Pl.’s Br. at 9.) Plaintiff further contends that the RFC
for light work (1) exceeds “any of the documented evidence in her medical record,” 8 and (2)
“totally disregards Plaintiff’s sworn testimony, which is supported by the evidence as a whole.”
(Id.) However, as previously set out in this Recommendation, the ALJ properly provided
myriad reasons for discounting both (1) the opinion evidence indicating more severe
limitations and (2) the credibility of Plaintiff’s testimony as to the severity of those limitations.
Moreover, in challenging the RFC, Plaintiff never identifies what additional limitations her
impairments may require, other than asserting that such limitations would render her
completely disabled. (Pl.’s Br. at 10.) Accordingly, the Court finds no basis for disturbing the
Commissioner’s decision.
In fact, as previously noted, Dr. Woods opined that Plaintiff could perform a reduced range of medium
work. (Tr. at 15, 102.) The ALJ “gave that opinion some weight but declined to adopt it because it was made
without the benefit of a review of the entirety of the evidence of record and because it does not adequately
consider the claimant’s subjective allegations.” (Tr. at 15.) After reviewing the record as a whole, the ALJ
instead found Plaintiff capable of light work with additional, nonexertional limitations.
8
16
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion to Reverse the Decision of the
Commissioner [Doc. #8] be DENIED, that Defendant’s Motion for Judgment on the
Pleadings [Doc. #10] be GRANTED, and that this action be DISMISSED with prejudice.
This, the 27th day of September, 2016.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?