BERRY-HOBBS V. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 9/6/2016; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 8 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be granted, and that judgment be entered for Defendant. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARY BERRY-HOBBS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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1:15CV01103
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Mary Berry-Hobbs, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 6 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 8, 11; see also Docket Entry 9 (Plaintiff’s Memorandum),
Docket Entry 12 (Defendant’s Memorandum)).
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 an onset date of June 15, 2012.
1
(Tr. 245-59.)1
Plaintiff did not pursue her claim for SSI beyond the application stage.
Tr. 1-6, 89-100, 157-94, 327-29, 338-41.)
(See
The
Social
Security
Administration
denied
Plaintiff’s
DIB
application initially (Tr. 157-65, 179-82) and on reconsideration
(Tr. 166-78, 187-94), and Plaintiff requested a hearing de novo
before
an
Administrative
Law
Judge
(“ALJ”)
(Tr.
195-97).
Plaintiff, her attorney, and a vocational expert (“VE”) attended
the hearing.
(Tr. 105-42.)
The ALJ subsequently ruled that
Plaintiff did not qualify as disabled under the Act (Tr. 89-100).
The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 337-41), thereby 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, 2017.
2.
[Plaintiff] has not engaged in substantial gainful
activity since June 15, 2012, the alleged onset date.
3.
[Plaintiff] has the following severe impairment:
rheumatoid arthritis.
. . .
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] had the residual functional
capacity to perform light work . . . with exceptions.
She can frequently climb ladders, ropes, scaffolds,
ramps/stairs, and stoop. [Plaintiff] should avoid
concentrated exposure to pulmonary irritants such as
dust, odors, and gases (as a precaution for her non2
severe asthma with tobacco abuse). She can frequently
handle
objects
with
both
hands,
meaning
gross
manipulation.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as an optical instrument assembler, optometric
assistant, operations manager (per DOT), and store
manager. This work does 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 are other jobs that exist in significant
numbers in the national economy that [Plaintiff] also can
perform.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from June 15, 2012, through the
date of this decision.
(Tr.
94-100
(bold
font
and
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).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
3
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
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, 401 (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) (brackets and internal
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
4
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
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)).2
“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
2
regulations
establish
a
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
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
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. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3
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,
3
“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
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
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.
See 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 567.5
4
“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.
5
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
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1)
evidence
“[t]he
of
the
ALJ
failed
state
to
agency
evaluate
properly
physicians,
the
the
opinion
treating
nurse
practitioner, and the examining orthopedist” (Docket Entry 9 at 4
(initial capitals omitted)); and
(2) “[t]he ALJ’s analysis of [RFC] is legally insufficient and
her RFC finding is not supported by substantial evidence” (id. at
11 (initial capitals omitted)); and
(3) “[t]he ALJ failed to consider properly [Plaintiff’s]
limitations in concentration caused by her medications” (id. at 13
(initial capitals omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 12 at 10-19.)
1. Opinion Evidence
Plaintiff first contends that “[t]he ALJ failed to follow the
requirements of 20 [C.F.R. §] 404.1527 or offer good reasons for
her assignment of weight to the opinions of the state agency
physicians,
orthopedist.”
treating
nurse
practitioner,
(Docket Entry 9 at 4.)
and
examining
According to Plaintiff,
those “opinions are well supported by the medical evidence and
clearly explain the limitations caused by [Plaintiff’s] rheumatoid
8
arthritis.”
(Id. at 4-5.)
Plaintiff’s first assignment of error
fails to warrant relief.
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.
For
example,
the
nature
and
extent
of
each
treatment
relationship appreciably tempers the weight an ALJ affords an
opinion.
See
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 of
record.
See 20 C.F.R. § 404.1527(c)(2)-(4).
opinion
is
not
supported
by
clinical
“[I]f a physician’s
evidence
or
if
it
is
inconsistent with other substantial evidence, it should be accorded
9
significantly less weight.”
Craig, 76 F.3d at 590 (emphasis
added).
a.
State Agency Physicians
State agency physicians Dr. Margaret Parrish and Dr. Melvin L.
Clayton each opined that Plaintiff retained the RFC to perform
light
work
fingering
with
(fine
occasional
handling
manipulation)
frequent handling
and
with
(gross
the
fingering with
left
the
(dominant)
right
concentrated exposure to pulmonary irritants.
171-72.)
manipulation)
hand,
and
hand,
and
no
(See Tr. 162-63,
The ALJ gave “great weight” to the physicians’s opinions
that Plaintiff remained able to perform light work, but accorded
“little weight to their opinions that she could only occasionally
handle and finger objects with her left hand,” as “not consistent
with treatment records from April 2013, when [Plaintiff] admitted
that within [three] months of starting medication, her joint pain
had significantly improved and that she had had no recent joint
swelling,” and “inconsistent with the physical examination at that
visit which showed [Plaintiff] had good range of motion in all
joints with no synovitis and no [metatarsophalangeal] tenderness.”
(Tr. 98 (internal citations omitted).)
Plaintiff faults the ALJ for “cherry pick[ing] a treatment
note
indicating
that
[Plaintiff’s]
joint
pain
improved
with
treatment” and “ignor[ing] medical evidence that did not comport
with [the ALJ’s] RFC finding.”
(See Docket Entry 9 at 5 (citing
10
Tr. 98).)
According to Plaintiff, she “has frequently complained
of pain and swelling in her hands and wrists” (id. at 5-6 (citing
Tr.
349,
decreased
357,
375,
range of
427)),
motion
and
and
objective
tenderness
evidence
in
[her]
“revealed
hands
and
shoulders” (id. at 6 (citing Tr. 428)). Plaintiff further contends
that the state agency physicians’s opinions that Plaintiff could
only occasionally handle and finger with her left hand find further
support
in
the
opinions
of
a
treating
rheumatology
nurse
practitioner and an examining orthopedist, who both opined that
Plaintiff could handle and finger on a less than occasional basis
(id. (citing Tr. 406-08, 472, 474)), as well as with Plaintiff’s
“uncontradicted
hearing
testimony”
(id.
(citing
Tr. 127-28)).
Plaintiff’s contentions fall short.
Plaintiff’s charge that the ALJ cherry-picked the evidence to
support her decision to discount the state agency physicians’s
opinions lacks merit.
The ALJ discussed Plaintiff’s course of
treatment for her rheumatoid arthritis in a fair amount of detail,
including, as the underlined portions reflect, mentioning the four
office visits Plaintiff cited as evidence the ALJ ignored:
[Plaintiff] was diagnosed with rheumatoid arthritis in
November 2011.
On examination, she had only “mild”
swelling of some of the joints in her hands and only
“mildly” limited range of the abduction and external
rotation of her shoulders. [Plaintiff] was referred to a
rheumatologist, who prescribed [Plaintiff] Methotrexate
in February 2012 and a left wrist injection in April
2012.
By her alleged onset date, [Plaintiff] had
responded well to her medication but had some left wrist
pain and swelling, and morning joint stiffness.
11
Examination showed she had increased warmth, swelling,
and tenderness of the left wrist with decreased range of
motion, but no other warmth or swelling of the small
joints in her hands or any other joints. [Plaintiff]
received another steroid injection into her left wrist,
and was continued on Methotrexate. She was also started
on Simponi injections.
After only one month, [Plaintiff] reported the injection
in her wrist helped tremendously, as [did] Simponi
injections with her joint pain.
She admitted that
because of her improved symptoms, she was able to begin
exercising again. While [Plaintiff] did report having
some “mild” back pain, she attributed this to her
increased activity and a recent fishing trip.
On
examination, she had “mild” synovitis in her left wrist
with “mild” tenderness to palpation, which was much
improved
from
her
last
visit.
[Plaintiff’s]
rheumatologist further noted that [Plaintiff’s] arthritis
was “significantly improved” from her first visit.
[Plaintiff] did not follow up with her rheumatologist
after her July 2012 visit, and also stopped taking her
rheumatoid arthritis medications, allegedly due to
finances.
She complained of daily pain and morning
stiffness as a result of being off her medications.
[Plaintiff] was referred to an organization that links
people without health insurance to a local network of
clinics that donate their efforts to help those in
financial need; however, she did not qualify because of
the amount of unemployment benefits she was receiving.
[Plaintiff] did not follow up with a rheumatologist until
April 2013, almost 9 months later. Despite her lack of
treatment, notes show her rheumatoid arthritis was
stable, with no active synovitis on examination. Though
she had some erosion of her lunar styloids, [Plaintiff’s]
only complaints were of pain in her back and left hip.
She had no tenderness to palpation over her joints, and
had good range of motion of her shoulders, hips, elbows,
wrists, knees, ankles, and feet. [Plaintiff] also had
normal muscle strength throughout. She was continued on
the same medications.
Thereafter, [Plaintiff] again had no follow up regarding
her rheumatoid arthritis for many months.
In October
2013, she reported having been off her medications for
approximately [three] months, with a reported increase in
12
joint pain, swelling, and stiffness. [Plaintiff] also
reported having daily fatigue, poor sleep, and weakness.
She was given some free samples of medication, but it
appears she was not consistent in obtaining these
medications, as notes show she had been out of medication
for a month by December 2013.
(Tr. 96-97 (underlining added) (italics in original) (internal
citations omitted); see also Tr. 349, 257, 375, 427.)6
The treatment notes on which Plaintiff relies in fact confirm
the ALJ’s ultimate conclusion that “[t]he longitudinal treatment
records reflect [Plaintiff’s] joint pains are generally wellmanaged with medication.”
specifically
mentioned
(Tr. 97.)
only
an
Moreover, although the ALJ
April
2013
treatment
note
as
inconsistent with the state agency physicians’s opinions (see Tr.
98), having already discussed all of the relevant evidence earlier
in her decision, no need existed for the ALJ to rehash that
discussion in connection with her weighing of the opinion evidence.
See McCartney v. Apfel, 28 F. App’x 277, 279-80 (4th Cir. 2002)
(rejecting challenge to ALJ’s finding for lack of sufficient detail
where other discussion in decision adequately supported finding and
stating “that the ALJ need only review medical evidence once in his
decision”); Kiernan v. Astrue, No. 3:12CV459-HEH, 2013 WL 2323125,
at *5 (E.D. Va. May 28, 2013) (unpublished) (observing that, where
6
The ALJ mistakenly described an October 29, 2012 office visit with family nurse
practitioner Michele M. Cerra as occurring in October 2013. (See Tr. 97.) The
treatment record reflects that October 8, 2013 represents the date personnel at
Duke Medicine scanned the document. (See Tr. 427.) Orthopedist Dr. Gilbert G.
Whitmer made a similar error with regard to the date of that office visit when
discussing the evidence he reviewed prior to his examination of Plaintiff. (See
Tr. 469.)
13
an “ALJ analyzes a claimant’s medical evidence in one part of his
decision, there is no requirement that he rehash that discussion”
in other parts of his analysis).
Plaintiff correctly argues that the opinions of Ms. Cerra and
Dr.
Whitmer
each
contain
more
restrictive
limitations
on
Plaintiff’s ability to handle and finger than the state agency
physicians’s opinions in that regard.
(See Docket Entry 9 at 6
(citing Tr. 406-08, 472, 474).) However, for the reasons described
in more detail below, substantial evidence supports the ALJ’s
decision to accord “little to no weight” to the opinions of Ms.
Cerra and Dr. Whitmer.
(Tr. 98.)
Plaintiff additionally points to her testimony regarding the
functional impact of her rheumatoid arthritis on her ability to use
her hands as further support for the state agency physicians’s
opinions.
(See Docket Entry 9 at 6-7 (citing Tr. 127-28).)
However, the ALJ analyzed Plaintiff’s subjective complaints of
symptoms and ultimately concluded that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [her]
symptoms [we]re not entirely credible . . . .” (Tr. 96; see also
Tr. 97-98 (detailing “factors [that] weigh against [Plaintiff’s]
credibility”), and Plaintiff has not raised a direct challenge to
the ALJ’s analysis of Plaintiff’s subjective complaints (see Docket
Entry 9 at 4-14).
14
In sum, the ALJ did not err in her evaluation of the state
agency physicians’s opinions.
b.
Family Nurse Practitioner Michele M. Cerra
Ms. Cerra completed a medical source statement on November 2,
2012, which limited Plaintiff to less than two hours of sitting,
standing, and walking in an eight-hour workday, and to rarely
(defined as up to 30 minutes) lifting 10 pounds and occasionally
(defined as up to two hours) lifting two pounds.
(See Tr. 406-07.)
According to Ms. Cerra, Plaintiff required the ability to alternate
between sitting and standing “at will,” and needed more than five
minutes to “stretch or walk around” when “transitioning from
sitting to standing.”
(Tr. 406.)
Ms. Cerra additionally opined
that Plaintiff could only rarely grasp, turn objects, engage in
fine manipulation, or reach.
(See Tr. 407.)
The ALJ noted Ms. Cerra’s opinion “that [Plaintiff] was not
capable of even sedentary work due to daily fatigue and joint
swelling, pain, and stiffness.”
(Tr. 98.)
The ALJ then accorded
“little to no weight” to Ms. Cerra’s opinion, remarking that Ms.
Cerra did not qualify as an “acceptable medical source” under the
regulations,
and
finding
that
Ms.
Cerra’s
opinion
lacked
“consisten[cy] with treatment records from July 27, 2012 (which
indicate [Plaintiff’s] arthritis was significantly improved with
pain reported at only 2/10 in severity); . . . from April 2013
(where [Plaintiff] reported ‘significantly improved’ joint pain
15
within only [three] months of starting medication and no joint
swelling); and . . . from December 2013 (with [Plaintiff] reporting
joint pain only 5/10 in severity).”
Plaintiff
maintains
that
the
(Id.)
ALJ
failed
to
support
her
decision to discount Ms. Cerra’s opinion with substantial evidence
for five reasons: 1) the ALJ failed to specifically address Ms.
Cerra’s restrictions on Plaintiff’s ability to sit, stand, walk,
lift, and reach (see Docket Entry 9 at 7); 2) the ALJ “selectively
pulled out adverse evidence” to support her decision to discount
Ms. Cerra’s opinion (id.); 3) “[t]he ALJ incorrectly state[d] that
[Plaintiff] did not follow up with the rheumatologist until almost
nine months after the July 2012 visit” (id. at 8); 4) the ALJ
“trivialize[d]” Plaintiff’s complaint of pain 5/10 in severity
(id.); and 5) “the ALJ suggest[ed] that [Plaintiff’s] rheumatoid
arthritis was asymptomatic at the [April 2013] visit [to UNC
Rheumatology]” (id. at 9). None of those reasons renders the ALJ’s
decision
to
discredit
Ms.
Cerra’s
opinion
unsupported
by
substantial evidence.
The ALJ summarized the various components of Ms. Cerra’s
opinion as amounting to a restriction to less then “even sedentary
work,” and gave that opinion “little to no weight.”
(Tr. 98.)
Thus, absent an indication to the contrary, the ALJ gave every
component of Ms. Cerra’s opinion “little to no weight.”
Moreover,
the
regulations
define
16
sedentary
work
as
(Id.)
involving
“lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools,”
and occasional walking and standing.
20 C.F.R. § 404.1567(a).
Thus, the ALJ did address Ms. Cerra’s exertional restrictions.
Plaintiff
maintains
that
the
harmonized with Ms. Cerra’s opinion.
ALJ
ignored
evidence
that
(See Docket Entry 9 at 7-8.)
Plaintiff points to treatment records in February, May, and June
2012, which showed that she continued to experience significant
pain in her hands and wrists despite her medication.
(Id. (citing
Tr. 350, 351, 358, 359, 362).) However, as detailed above, the ALJ
discussed
these
treatment
visits
(none
of
which
post-date
Plaintiff’s alleged onset date) in her opinion (see Tr. 96), but
concluded that later visits showed that Plaintiff’s “joint pains
[we]re
generally
well-managed
with
medication”
(Tr.
97).
Substantial evidence supports that conclusion.
Plaintiff correctly observes that the ALJ mistakenly believed
an October 29, 2012 office visit occurred in October 2013, but
fails to show how that error impacted the ALJ’s analysis and
weighing of Ms. Cerra’s opinion.
also Tr. 97.)
(See Docket Entry 9 at 8; see
The ALJ did not base her decision to discount Ms.
Cerra’s opinion on the purported treatment gap between Plaintiff’s
July 27, 2012 visit with Ms. Cerra and Plaintiff’s April 1, 2013
visit with Dr. Joanne Jordan with UNC Rheumatology.
17
(See Tr. 98.)
Plaintiff complains that the ALJ “trivialize[d]” Plaintiff’s
report of pain in December 2013 by describing it as “only 5/10 in
severity” (Docket Entry 9 at 8; see Tr. 98, 463), and argues that
such a “level of pain is certainly consistent with a limitation to
only occasional use of the hands for fingering and handling”
(Docket Entry 9 at 8).
However, Ms. Cerra restricted Plaintiff to
rarely (defined as up to 30 minutes) grasping, turning objecting,
engaging in fine manipulation, and reaching (see Tr. 407), and the
ALJ apparently believed that a complaint of 5/10 pain lacked
consistency
with
such
an
extreme
limitation
(see
Tr.
98).
Plaintiff has not shown error with regard to that conclusion.
Lastly,
Plaintiff
faults
the
ALJ
for
“suggest[ing]
that
[Plaintiff’s] rheumatoid arthritis was asymptomatic” at the April
1, 2013 visit with Dr. Jordan.
the
ALJ
did
not
state
or
(Docket Entry 9 at 9.)
imply
that
Plaintiff
However,
suffered
no
rheumatoid arthritis symptoms at her April 2013 visit; rather, the
ALJ
correctly
observed
that
Dr.
Jordan
described
Plaintiff’s
rheumatoid arthritis as “‘stable’” and noted “‘no active synovitis’
on
examination.”
(Tr. 97 (citing Tr. 423).)
In short, the ALJ did not err in her evaluation of Ms. Cerra’s
opinion.
c.
Dr. Gilbert G. Whitmer
Dr. Whitmer evaluated Plaintiff on March 13, 2014, after the
ALJ’s hearing but before the ALJ issued her decision.
18
(See Tr.
469-72.)
medical
Following his examination, Dr. Whitmer completed a
source
“[r]heumatoid
hands.”
least
statement,
arthritis
(Tr. 473.)
mildly
severe
which
affecting
reflected
a
shoulders,
diagnosis
elbows,
of
wrists,
According to Dr. Whitmer, Plaintiff had “at
[rheumatoid
arthritis]
in
her
shoulders,
moderate severe [rheumatoid arthritis] in her wrists, and mildly to
moderately severe [rheumatoid arthritis] in her hands, particularly
her thumbs and index and middle fingers bilaterally.”
(Tr. 474.)
Dr. Whitmer opined that plaintiff could rarely (defined as up to 30
minutes) grasp, turn objects, and engage in fine manipulation, and
could occasionally (defined as up to two hours) reach.
(Tr. 474.)
The ALJ evaluated Dr. Whitmer’s findings and opinions as
follows:
Two months after th[e] hearing was held, [Plaintiff’s]
attorney sent her for an exam with Dr. Gilbert Whitmer on
March 13, 2014. [Plaintiff] complained of significantly
more severe symptoms and limitations to this doctor than
she did when evaluated by her treating source in December
2013. . . .
Accordingly, . . . I consider the findings and opinions
from Dr. Whitmer’s one-time evaluation with some
skepticism.
Remember, [Plaintiff] was sent to this
source by her lawyer after the hearing was conducted,
even though she had recent treatment records in the file
at the time of the hearing.
. . .
I . . . give little to no weight to the opinions of Dr.
Gilbert Whitmer, who examined [Plaintiff] at the request
of her attorney almost [two] months after th[e] hearing
was held. He opined that [Plaintiff] could only rarely
use her hands for grasping, turning objects or fine
manipulations; could only occasionally reach overhead
19
with her arms; had moderately severe [rheumatoid
arthritis] in her wri[]st, and mildly to moderately
severe [rheumatoid arthritis] in her hands. This opinion
was rendered after only one treatment visit with
[Plaintiff], and there is no indication that [Plaintiff]
was taking her rheumatoid arthritis medication at the
time of the examination, as she had not seen her
rheumatologist in almost five months.
The record
established that, with medication, [Plaintiff’s] symptoms
are “significantly” improved.
(Tr. 97-98 (internal citations omitted).)
Plaintiff maintains that “the ALJ’s rejection of Dr. Whitmer’s
opinion
is
based
on
improper
rationales
and
unsupported
by
substantial evidence.” (Docket Entry 9 at 11.) More specifically,
Plaintiff challenges the ALJ’s “suggest[ion] that Dr. Whitmer’s
opinion should be discredited because [Plaintiff’s] attorney played
a role in arranging the examination he performed” (id. at 9 (citing
Tr. 97)), and argues that such a basis does not constitute “a
legitimate reason for discounting Dr. Whitmer’s clinical findings
or the opinion under 20 [C.F.R. §] 404.1527” and “suggests that
[the ALJ] did not fairly evaluate the report on its merits” (Docket
Entry 9 at 10).
Plaintiff further disputes the ALJ’s statements
that Plaintiff made “significantly more severe” complaints during
Dr. Whitmer’s examination than she had made at prior office visits
(id. (citing Tr. 97)), and the ALJ’s “baseless speculation” that
Plaintiff “was not taking her rheumatoid arthritis medication at
the
time
of
[Dr.
Whitmer’s]
exam”
Plaintiff’s arguments fall short.
20
(id.
(citing
Tr.
98)).
“An ALJ may certainly question a doctor’s credibility when the
opinion
.
.
.
was
solicited
by
counsel.
The
ALJ
may
not
automatically reject the opinion for that reason alone, however.”
Hinton
v.
Massanari,
13
F.
App’x
819,
824
(10th
Cir.
2001)
(internal citation omitted); see also Tyler v. Commissioner of Soc.
Sec., No. 1:13–cv–277, 2014 WL 1052627, at *4 (W.D. Mich. Mar. 18,
2014) (unpublished) (“It was entirely appropriate for the ALJ to
note that [the doctor] had examined [the] plaintiff on a referral
from [the]
examination
plaintiff’s
was
to
attorney
generate
and
that
evidence
the
in
purpose
support
of
of
the
[the]
plaintiff’s claims for DIB and SSI benefits.”) (collecting cases).
So long as the ALJ relies on other factors in addition to the
source of the examination to support his or her decision to
discount the opinion in question, the ALJ does not commit error.
See Parks v. Colvin, No. CIV.A. 5:13-868-BHH, 2014 WL 4199055, at
*14 (D.S.C. Aug. 20, 2014) (unpublished) (“The fact that the ALJ
noted that [the doctor’s] opinion was ‘arranged and paid for by the
claimant's representative’ is not in and of itself error. ‘The
court does not foreclose the possibility that whether a medical
opinion is procured by attorney referral may sometimes be a factor
in the weight given to that opinion; however, that fact alone is
insufficient to establish substantial evidence for discounting the
[
]
opinion
.
.
.
.’”)
(quoting
21
Jordan
v.
Colvin,
No.
8:12–cv–01676–DCN, 2013 WL 5317334, at *7 (D.S.C. Sept. 20, 2013)
(unpublished), in turn citing Hinton, 13 F. App'x at 824).
Here, the ALJ did not rely solely on the fact that Plaintiff’s
attorney arranged for Dr. Whitmer’s examination in discounting Dr.
Whitmer’s findings and opinions.
As quoted above, the ALJ also
found that, having evaluated Plaintiff only once, Dr. Whitmer did
not have an established treating relationship with Plaintiff. (See
Tr. 98; see also 20 C.F.R. § 404.1527(c)(2) (including “[t]reatment
relationship” as factor ALJ should consider in weighing opinions.)
Moreover, the ALJ observed that Plaintiff made “significantly more
severe” complaints to Dr. Whitmer than she had to two other medical
providers who had treated her in the past year (Tr. 97), and
substantial evidence supports that observation (compare Tr. 470
(containing Plaintiff’s report to Dr. Whitmer on March 13, 2014,
that she has “considerable pain, swelling, and loss of motion and
strength in her shoulders, wrists, and hands”), with Tr. 463-68
(reflecting Plaintiff’s report to a nurse at the Lincoln Community
Health Center on December 27, 2013, of non-specific joint pain 5/10
in severity and complaints primarily of an asthma exacerbation),
421 (evidencing Plaintiff’s statement to Dr. Jordan on April 1,
2013, that Plaintiff “never had very much swelling associated with
her joint pain” and that “her only complaints of pain w[ere] in the
back and the left hip”)).
22
In contrast, the ALJ’s remark that “there [wa]s no indication
that [Plaintiff] was taking her rheumatoid arthritis medication at
the time of [Dr. Whitmer’s] examination” (Tr. 98 (emphasis added))
arguably lacks the support of substantial evidence.
Although Dr.
Whitmer’s report does not establish that Plaintiff remained current
on her rheumatoid arthritis medications (see Tr. 470 (listing
methotrexate and hydrochloroquine (Plaquenil) under past medical
history)), a December 27, 2013 record from Lincoln Community Health
Center reflects that the nurse refilled Plaintiff’s methotrexate
(giving three refills) and Plaquenil (giving six refills) (see Tr.
467).
Further, Plaintiff testified at the hearing on January 21,
2014, that her brain fog became worse on the days she took her
methotrexate.
(See Tr. 130-31.)
Those two pieces of evidence,
when considered together, could suggest that Plaintiff remained on
methotrexate and Plaquenil at the time of Dr. Whitmer’s March 13,
2014 examination; thus, the ALJ (although entitled to point out the
lack of confirmation of continued medicine compliance in Dr.
Whitmer’s
report)
likely
should
not
have
used
the
term
“no
indication” in discussing this matter.
Nevertheless,
Plaintiff’s
any
medication
overstatement
amounts
circumstances presented here.
to
by
the
harmless
ALJ
error,
regarding
under
the
The ALJ provided three other valid
reasons for discounting Dr. Whitmer’s opinions (see Tr. 97-98) and
therefore, excluding the medicine compliance issue, the ALJ’s
23
decision to discount Dr. Whitmer’s opinions remains supported by
substantial
evidence.
See
Rodriguez
v.
Colvin,
No.
EDCV
13-1357-JPR, 2014 WL 3955191, at *11 (C.D. Cal. Aug. 13, 2014)
(unpublished) (noting that ALJ’s discounting of doctor’s opinion
because of conservative level of care “may have been in error” but
deeming any such error “harmless because [the ALJ] gave other
specific and legitimate reasons for discounting [the doctor’s]
opinion” (citing Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d
1050, 1055 (9th Cir. 2006), and Howell v. Commissioner Soc. Sec.
Admin., 349 F. App’x 181, 184 (9th Cir. 2009))); see generally
Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (observing
that “[n]o principle of administrative law or common sense requires
[a court] to remand a case in quest of a perfect opinion [by an
ALJ] unless there is reason to believe that the remand might lead
to a different result”).
Simply put, Plaintiff’s first assignment of error does not
require remand.
2. Function-by-Function Analysis
Plaintiff next asserts that the ALJ failed to perform a
function-by-function analysis “of the seven strength demands that
the
Social
Security
Administration
considers
essential
to
determining [RFC]” or “the vocationally critical[] manipulative
functions, reaching and fingering” (Docket Entry 9 at 12), in
violation of Mascio v. Colvin, 780 F.3d632 (4th Cir. 2015), and
24
Social Security Ruling 96-8p, Policy Interpretation Ruling Titles
II and XVI: Assessing Residual Functional Capacity in Initial
Claims, 1996 WL 374184 (July 2, 1996) (“SSR 96-8p”).
Plaintiff
acknowledges that Mascio “did not adopt a per se rule requiring
remand whenever the ALJ does not perform an explicit function-byfunction analysis,” but posits “that the ALJ must provide enough
analysis for a court to meaningfully review the ALJ’s conclusions.”
(Docket
Entry
9
at
11.)
According
to
Plaintiff,
“the
ALJ
provide[d] only the conclusory RFC assessment[] [that] [Plaintiff]
can perform ‘light’ work,” and [t]he only specific finding that the
ALJ made – a limitation to frequent use of the dominant left hand
for handling (gross manipulation) - was contradicted by every
medical professional who opined on this issue.”
(Id. at 12.)
Plaintiff’s contentions entitle her to no relief.
RFC measures the most a claimant can do despite any physical
and
mental
limitations.
§ 404.1545(a).
Hines,
453
F.3d
at
562;
20
C.F.R.
An ALJ must determine a claimant’s exertional and
non-exertional capacity only after considering all of a claimant’s
impairments, as well as any related symptoms, including pain.
Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b).
See
The ALJ then
must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
heavy).
See 20 C.F.R. § 404.1567.
25
Any non-exertional limitations
may further restrict a claimant’s ability to perform jobs within an
exertional level.
See 20 C.F.R. § 404.1569a(c).
An ALJ need not discuss every piece of evidence in making an
RFC determination. See Reid v. Commissioner of Soc. Sec., 769 F.3d
861, 865 (4th Cir. 2014) (citing Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005)).
and
logical
bridge
However, the ALJ “must build an accurate
from
the
evidence
to
[the]
conclusion.”
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
As to the
role of the function-by-function analysis in that determination,
the relevant administrative ruling states: “The RFC assessment must
first
identify
the
individual’s
functional
limitations
or
restrictions and assess his or her work-related abilities on a
function-by-function basis . . . .
Only after that may RFC be
expressed in terms of the exertional levels of work, sedentary,
light, medium, heavy, and very heavy.”
SSR 96-8p, 1996 WL 374184,
at *1.
The Fourth Circuit recently addressed this administrative
ruling and the issue of whether an ALJ’s failure to articulate a
function-by-function analysis necessitates remand.
F.3d at 636–37.
Mascio, 780
The Fourth Circuit stated “that a per se rule is
inappropriate given that remand would prove futile in cases where
the
ALJ
does
not
discuss
functions
that
are
irrelevant
or
uncontested,” id. at 636, but that “‘remand may be appropriate
where an ALJ fails to assess a claimant’s capacity to perform
26
relevant functions, despite contradictory evidence in the record,
or
where
other
inadequacies
in
the
ALJ’s
analysis
frustrate
meaningful review,’” id. (internal brackets and ellipsis omitted)
(quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
Here, contrary to Plaintiff’s argument (see Docket Entry 9 at
11-13),
the
ALJ
sufficiently
addressed
the
exertional
and
nonexertional components of the RFC to permit meaningful review by
the Court.
The ALJ accorded “great weight” to the state agency
physicians’s opinions that Plaintiff remained capable of performing
light work.
(Tr. 98.)
The state agency physicians, as part of
their RFC determination, opined that Plaintiff could occasionally
lift or carry up to 20 pounds, could frequently lift or carry up to
ten pounds, could sit, stand, and walk for up to six hours in an
eight-hour workday, and had no limitations in her ability to push
and/or pull beyond the weight limits for lifting and carrying.
(See Tr. 162, 171.)
agency
physicians’s
Thus, by virtue of the ALJ adopting the state
opinions
that
Plaintiff
remained
able
to
perform light work (see Tr. 98), the ALJ implicitly addressed (and
adopted) the physicians’s exertional limitations.
Plaintiff makes no argument that the ALJ erred by failing to
specifically
address
postural,
environmental
limitations.
(See
visual,
Docket
communicative,
Entry
9
at
or
11-13.)
Regarding manipulative limitations, the state agency physicians
limited Plaintiff to occasional handling and fingering with her
27
left hand and frequent handling and fingering with her right hand.
(See Tr. 162, 172.)
As discussed above, the ALJ accorded “little
weight” to the state agency physicians’s opinions that Plaintiff
could only occasionally handle and finger with her left hand (Tr.
98), and substantial evidence supports the ALJ’s decision in that
regard.7
Finally, the ALJ expressly noted Dr. Whitmer’s opinion
that Plaintiff could only occasionally reach overhead with her
arms, but afforded that opinion “little to no weight” (id.).
As
discussed above, substantial evidence supports the ALJ’s decision
to discount Dr. Whitmer’s opinion.8
Given that the state agency
physicians found no limitation on Plaintiff’s ability to reach (see
Tr. 162, 172), Plaintiff has not shown how the ALJ’s further
discussion of reaching in the RFC analysis could have impacted the
outcome of her case (see Docket Entry 9 at 11-13).
See generally
7
The ALJ gave “great weight” to the state agency physicians’s opinions that
Plaintiff could perform light work, and “little weight” to their opinions that
Plaintiff could only occasionally handle and finger with her left hand. (See Tr.
98; see also Tr. 162, 172.) The ALJ did not expressly address the physicians’s
opinions that Plaintiff could frequently handle or finger with her right hand.
(See Tr. 162, 172.) Even assuming that the ALJ fully credited that opinion and
thus that the ALJ erred by failing to include a limitation to frequent fingering
in the RFC (see Tr.95), harmless error would result. See generally Fisher, 869
F.2d at 1057 (observing that “[n]o principle of administrative law or common
sense requires [a court] to remand a case in quest of a perfect opinion [by an
ALJ] unless there is reason to believe that the remand might lead to a different
result”). The ALJ made an alternate, step five finding, in which she adopted the
three jobs cited by the VE as available in significant numbers in the national
economy – general office clerk, customer service clerk, and file clerk II – (see
Tr. 100, 135-38), and none of those jobs requires more than frequent handling or
fingering, see Dictionary of Occupational Titles Nos. 219.362-010, 1991 WL 671953
(“Administrative Clerk”), 299.367-010, 1991 WL 672630 (“Customer-Service Clerk”),
206.367-014, 1991 WL 671732 (“File Clerk II”) (G.P.O. 4th ed. rev. 1991).
8
Similarly, Ms. Cerra limited Plaintiff to rarely (defined as up to 30 minutes)
reaching with her arms (including overhead) (see Tr. 407), but, as discussed
above, substantial evidence supports the ALJ’s decision to discount Ms. Cerra’s
opinions.
28
Fisher, 869
F.2d
at 1057
(observing
that
“[n]o
principle
of
administrative law or common sense requires [a court] to remand a
case in quest of a perfect opinion [by an ALJ] unless there is
reason to believe that the remand might lead to a different
result”).
In conclusion, Plaintiff’s second assignment of error lacks
merit.
3. Medication Side Effects
In Plaintiff’s third and final issue on review, she claims
that the ALJ did not properly consider Plaintiff’s concentration
difficulties caused by her methotrexate.
13-14.)
(See Docket Entry 9 at
In particular, Plaintiff disputes the ALJ’s statement
“that ‘the only side effects [Plaintiff] ever complained of were
dry eyes and mouth, and hair loss’” (id. at 14 (quoting Tr. 98)),
and points to her report of an increase in “methotrexate cognitive
side effects” at a March 2013 office visit with the Lincoln
Community
Health
Center
(id.
(citing
Tr.
460)).
Plaintiff
additionally notes her testimony that her primary care physician
had recently prescribed an anti-depressant to help with Plaintiff’s
brain fog and emotions.
(Id. (citing Tr. 132).)
According to
Plaintiff, the ALJ’s failure to adequately account in the RFC for
Plaintiff’s concentration difficulties amounts to harmful error, in
that the VE testified that a limitation to simple, routine, and
repetitive tasks due to the side effects of medication would
29
preclude the jobs cited by the VE and relied upon by the ALJ in her
alternative,
step
five
finding.
(Id.;
see
also
Tr.
141.)
Plaintiff’s argument ultimately does not warrant relief.
Plaintiff correctly argues that the ALJ did not recognize
Plaintiff’s complaint of a “mod[erate] increase of methotrexate
cognitive side effects” in March 2013.
Tr. 98, 460.)
(Docket Entry 9 at 14; see
However, even had the ALJ fully credited that
complaint, Plaintiff has not shown that one isolated report of a
moderate increase in unspecified “cognitive side effects” compels
the inclusion of a restriction to simple, routine, and repetitive
tasks in the RFC.
(See Docket Entry 9 at 13-14.)
The ALJ further
remarked that Plaintiff “was also exceptionally articulate during
the hearing in this matter when discussing her impairments despite
complaining of concentration and articulation difficulties.”
98.)
(See
(Tr.
Plaintiff has not challenged that observation by the ALJ.
Docket
Entry
9
at
13-14.)
Furthermore,
to
the
extent
Plaintiff relies on her own testimony regarding her concentration
difficulties,
as
discussed
above,
the
ALJ
found
Plaintiff’s
“statements concerning the intensity, persistence, and limiting
effects of [her] symptoms . . . not entirely credible” (Tr. 96),
and Plaintiff has not directly disputed the ALJ’s credibility
finding (see Docket Entry 9 at 4-14).
In sum, Plaintiff’s assertion of error with regard to her
concentration difficulties falls short.
30
III.
CONCLUSION
Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment Reversing the Commissioner (Docket Entry 8) be denied,
that Defendant’s Motion for Judgment on the Pleadings (Docket Entry
11) be granted, and that judgment be entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 6, 2016
31
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