SQUIRES v. COLVIN
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION, signed by MAG/JUDGE L. PATRICK AULD on 1/24/2017, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KEVIN WILLIAM SQUIRES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:16CV190
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Kevin William Squires, 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 Plaintiff’s
claims
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)
Defendant has filed the certified administrative record
(Docket Entry 7 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 10, 14; see also Docket Entry 11
(Plaintiff’s
Memorandum);
Docket
Entry
15
(Defendant’s
Memorandum)).
For the reasons that follow, the Court should enter
judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
November 1, 2011. (Tr. 166-80.) Upon denial of those applications
initially (Tr. 63-79, 107-15) and on reconsideration (Tr. 80-99,
118-25),
Plaintiff
Administrative
Law
requested
Judge
a
(“ALJ”)
hearing
(Tr.
de
126).
novo
before
Plaintiff,
an
his
attorney, and a vocational expert (“VE”) attended the hearing (Tr.
28-62), during which Plaintiff amended his onset date to April 1,
2013 (see Tr. 31, 203).
The ALJ subsequently ruled that Plaintiff
did not qualify as disabled under the Act.
(Tr. 9-22.)
The
Appeals Council thereafter denied Plaintiff’s request for review
(Tr.
1-7,
8,
313-18),
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, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since April 1, 2013, the [amended] alleged onset
date.
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease; chronic pain; depression; and
anxiety.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . with manipulative
and mental restrictions. [Plaintiff] can lift 20 pounds
occasionally and he can lift and carry 10 pounds
frequently. He can sit, stand, and walk for up to six
hours each in an eight-hour workday.
He can perform
2
overhead reaching frequently.
He can perform simple,
routine tasks. He can have occasional public contact.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as a housekeeping cleaner.
This work does not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from April 1, 2013, through the
date of this decision.
(Tr.
14-22
(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.
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
3
(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
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).
4
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
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.
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
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
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).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
Step four then requires the ALJ to assess
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
(continued...)
6
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 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) the ALJ “erred in finding that [Plaintiff] has the [RFC]
to perform light work and his past relevant work as a housekeeper”
(Docket Entry 11 at 5 (capitalization omitted)); and
3
(...continued)
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
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
(2) the ALJ “erred in failing to give controlling weight to
the opinion of the treating physician” (id. at 6 (capitalization
omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 15 at 4-10.)
1. RFC
In Plaintiff’s first assignment of error, he contends that the
ALJ “erred in finding that [Plaintiff] has the [RFC] to perform
light work and his past relevant work as a housekeeper.”
Entry 11 at 5 (capitalization omitted).)5
(Docket
According to Plaintiff,
the ALJ had a “duty to account” (id. at 6) in the RFC for
Plaintiff’s testimony that he (1) “suffers crying spells at least
once or twice a week lasting an hour or so” (id. at 5 (citing Tr.
43)); (2) “suffers from daily anxiety attacks that last between one
and three hours” (id. at 6 (citing Tr. 43)); (3) “can stand [for]
15 through 30 minutes, walk only five minutes[,] and [must] use two
hands to lift a gallon of milk” (id. (citing Tr. 44)); and (4) “has
problems concentrating whether he is reading or on the computer”
(id. (citing Tr. 37, 47)).
Plaintiff further maintains that the
5
Although Plaintiff states in the heading of his argument that the ALJ “erred
in finding that [Plaintiff] has the [RFC] to perform . . . his past relevant work
as a housekeeper” (Docket Entry 11 at 5 (emphasis added) (capitalization
omitted)), Plaintiff does not develop any argument regarding any alleged
inability to perform the duties of his prior work as a housekeeper (see id. at
5-6), but argues more generally that his impairments prevent him from
“perform[ing] work at any exertional level” (id. at 6 (emphasis added)).
Accordingly, in discussing Plaintiff’s first assignment of error, this
Recommendation will focus on the ALJ’s RFC determination.
8
ALJ “had a
duty
to
account”
in
the
RFC
for
the
opinion
of
Plaintiff’s treating physician, Dr. James B. Holt, who limited
Plaintiff to “less than sedentary work.” (Id. at 6 (citing Tr. 40710).)
Plaintiff’s arguments miss the mark.
RFC measures the most a claimant can do despite any physical
and
mental
limitations.
Hines,
§§ 404.1545(a), 416.945(a).
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.
See
Hines,
453
F.3d
at
562–63;
20
C.F.R.
§§ 404.1545(b), 416.945(b). The ALJ then must match the claimant’s
exertional
abilities
to
an
appropriate
level
sedentary, light, medium, heavy, or very heavy).
§§ 404.1567, 416.967.
of
work
(i.e.,
See 20 C.F.R.
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), 416.969a(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)).
However, the ALJ “must build an accurate and logical
bridge from the evidence to [the] conclusion.”
Clifford v. Apfel,
227 F.3d 863, 872 (7th Cir. 2000).
The ALJ here sufficiently explained the basis for the RFC
determination.
(See Tr. 16-21).
The ALJ provided a comprehensive
9
review of the medical evidence of record (see Tr. 18-21), and
evaluated Plaintiff’s subjective complaints, expressly discussing
his testimony regarding crying spells, anxiety attacks, and his
allegedly limited abilities to stand, walk, and lift a gallon of
milk
(see
Tr.
17).
However,
the
ALJ
ultimately
found
that
Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [his] symptoms [we]re not entirely credible”
(Tr. 19), and supported that finding with reasoned analysis:
[Plaintiff] has some mild to moderate degenerative disc
disease in the cervical spine and very mild degenerative
changes in the lumbosacral spine. He does not have any
signs of nerve root compression, which might be expected
based on the degree of back pain alleged. He has a full
range of motion of the spine and has normal neurological
findings. He is able to perform heel/toe walk, tandem
walk, and squat/rise maneuvers. He has been prescribed
narcotic pain relievers for his chronic pain. He has not
required surgery or such other aggressive measures for
pain relief as use of steroid medication, epidural
injections, application of TENS equipment, or enrollment
in [a] physical therapy program. The treatment records
indicate that his pain waxes and wanes. He has been able
to perform such activities as roofing. Generally, his
pain is controlled with only occasional breakthrough
symptoms. The treatment regimen, therefore, indicates
that [Plaintiff’s] symptoms are not as intractable as
alleged.
[Plaintiff] has symptoms of anxiety and depression.
However, these were responsive to the psychiatric
medications that were prescribed. The treatment records
indicate that [Plaintiff] continued to seek employment
and that he even considered opening his own business. He
did not have any significant mental status abnormalities
other than in his mood and affect.
It is noted that
[Plaintiff] has not had any mental health treatment since
August 2013, indicating that his anxiety and depression
are not as incapacitating as alleged. He has been able
to live on his own and to manage his own affairs.
10
In addition, the medical evidence and observations by the
[ALJ] do not reveal any evidence of a change in motor
tone or bulk such as disuse atrophy, or other change in
body habitus or constitutional appearance such as weight
loss, which might be expected in a person whose
activities are markedly restricted due to a debilitating
disease
process.
These
factors
indicate
that
[Plaintiff’s] allegations of functional restrictions are
not fully credible.
(Tr. 19-20).
Plaintiff does not raise any specific challenges to this
credibility analysis, but simply argues that the ALJ had a “duty to
account” for Plaintiff’s subjective complaints in the RFC. (Docket
Entry 11 at 6.)
Plaintiff’s argument misstates the ALJ’s duty –
the ALJ labors under no obligation to accept Plaintiff’s subjective
complaints “at face value.”
Ramos-Rodriguez v. Commissioner of
Soc. Sec., Civ. No. 11-1323 (SEC), 2012 WL 2120027, at *3 (D.P.R.
June 11, 2012) (unpublished); see also Craig, 76 F.3d at 591 (“[The
claimant]
believes that
testimony not credible.
the
law
forbids
the
ALJ
finding
her
Instead, presumably, the ALJ was obliged
to accept, without more, her subjective assertions of disabling
pain and her subjective assessment of the degree of that pain.
Of
course, that is not and has never been the law in this circuit.”);
Social Security Ruling 96-7p, Titles II & XVI: Evaluation of
Symptoms in Disability Claims: Assessing the Credibility of an
Individual’s Statements, 1996 WL 374186, at *4 (July 2, 1996) (“SSR
96-7p”)
(“In
making
a
finding
about
the
credibility
of
an
individual’s statements, the [ALJ] need not totally accept or
11
totally
reject
the
individual’s
statements.
Based
on
a
consideration of all of the evidence in the case record, the [ALJ]
may find all, only some, or none of an individual’s allegations to
be credible.”).6
Rather, the ALJ must analyze and weigh such complaints in
compliance
with
the
applicable
regulations,
Social
Security
Rulings, and Fourth Circuit precedent, which require the ALJ to
consider the consistency of a claimant’s subjective complaints with
the record as a whole.
(“[W]henever
the
See SSR 96-7p, 1996 WL 374186, at *2
individual’s
statements
about
the
intensity,
persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the
[ALJ] must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.”);
6
Effective March 28, 2016, see Social Security Ruling 16-3p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims, 2016 WL 1237954 (Mar. 24, 2016) (correcting effective date of original
Ruling), the Social Security Administration superceded SSR 96-7p with Social
Security Ruling 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation
of Symptoms in Disability Claims, 2016 WL 1119029, at *1 (Mar. 16, 2016). The
new ruling “eliminat[es] the use of the term ‘credibility’ from . . . subregulatory policy, as [the] regulations do not use this term.” Id. The ruling
“clarif[ies] that subjective symptom evaluation is not an examination of the
individual’s character,” id., and “offer[s] additional guidance to [ALJs] on
regulatory implementation problems that have been identified since [the
publishing of] SSR 96-7p,” id. at *1 n.1. Plaintiff here does not argue that SSR
16-3p, rather than SSR 96-7p, applies to the ALJ’s evaluation of his subjective
complaints. (See Docket Entry 11 at 5-6.) Moreover, the ALJ’s decision in this
case predates the effective date of SSR 16-3p, and, because SSR 16-3p changes
existing Social Security Administration policy regarding subjective symptom
evaluation, that Ruling does not apply retroactively, see Bagliere v. Colvin, No.
1:16CV109, 2017 WL 318834, at *4-8 (M.D.N.C. Jan. 23, 2017) (Auld, M.J.)
(recommendation); see also Hose v. Colvin, No. 1:15CV00662, 2016 WL 1627632, at
*5 n.6 (M.D.N.C. Apr. 22, 2016) (unpublished) (Auld, M.J.), recommendation
adopted, slip op. (M.D.N.C. May 10, 2016) (Biggs, J.).
Accordingly, this
Recommendation will apply SSR 96-7p to Plaintiff’s argument regarding the ALJ’s
subjective symptom evaluation.
12
see
also
20
claimant’s]
C.F.R.
symptoms,
§§
404.1529(c)(4),
including
pain,
416.929(c)(4)
will
be
(“[A
determined
to
diminish [] capacity for basic work activities . . . to the extent
that [] alleged functional limitations and restrictions due to
symptoms, such as pain, can reasonably be accepted as consistent
with the objective medical evidence and other evidence.”); Craig,
76 F.3d at 595 (“[A] claimant’s allegations about her pain . . .
need not be accepted to the extent they are inconsistent with the
available evidence.”). The ALJ’s above-quoted credibility analysis
complies with that authority, and finds support in substantial
evidence of record.
Plaintiff additionally contends that the ALJ failed to account
in the RFC for treating physician Dr. Holt’s opinion that Plaintiff
remained capable of less than a full range of sedentary work.
Docket Entry 11 at 6 (citing Tr. 407-10).)
in
more
detail
below
in
connection
(See
However, as discussed
with
Plaintiff’s
second
assignment of error, the ALJ discounted Dr. Holt’s opinion, and
supported that analysis with substantial evidence.
(See Tr. 20.)
In sum, Plaintiff’s first claim on review fails to entitle him
to relief.
2. Treating Physician’s Opinions
In Plaintiff’s second issue on review, he alleges that the ALJ
“erred in failing to give controlling weight to the opinion of
[Plaintiff’s] treating physician,” Dr. Holt.
13
(Docket Entry 11 at
6 (capitalization omitted).) Plaintiff further asserts that, “even
if the ALJ d[id] not find that [the] treating source’s opinion
[wa]s [] entitled to controlling weight, the ALJ [wa]s required to
consider certain factors in evaluating the medical source opinion.”
(Id.
at
7-8
(citing
20
C.F.R.
§§
404.1527(d),
416.927(d)).)
According to Plaintiff, “[i]n many cases, a treating source’s
medical opinion will be entitled to the greatest weight and should
be adopted, even it if does not meet the test for controlling
weight.”
(Id. at 8 (citing Social Security Ruling 96-2p, Policy
Interpretation Ruling Titles II and XVI: Giving Controlling Weight
to Treating Source Medical Opinions, 1996 WL 374188, at *4 (July 2,
1996)).)
Plaintiff’s contentions fall short.
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), 416.927(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 individual examinations, such as
consultative examinations or brief hospitalizations.”).
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 may appreciably temper
14
the weight an ALJ affords an opinion.
(c)(2)(ii), 416.927(c)(2) (ii).
20 C.F.R. §§ 404.1527
Moreover, as subsections (2)
through (4) of the rule describe in great detail, a treating
source’s opinion, like all medical opinions, deserves deference
only if well-supported by medical signs and laboratory findings and
consistent with the other substantial evidence in the case record.
20
C.F.R.
§§
404.1527(c)(2)-(4),
416.927(c)(2)-(4).
“[I]f
a
physician’s opinion is not supported by clinical evidence or if it
is inconsistent with other substantial evidence, it should be
accorded significantly
less
weight.”
Craig, 76
F.3d
at
590
(emphasis added).
In this case, on November 18, 2013, Dr. Holt completed a
Medical Source Statement (“MSS”) on which he opined that Plaintiff
could occasionally lift and/or carry 10 pounds, frequently lift
and/or carry less than 10 pounds (see Tr. 407), stand and walk for
two hours total in a work day, sit for less than six hours total in
a work day, and had limited ability to push and/or pull with his
upper and lower extremities (see Tr. 408).
In addition, Dr. Holt
believed that Plaintiff could occasionally climb, but could never
balance, kneel, crawl, or stoop (see id.), possessed limited
ability to reach and handle (see Tr. 409), and should have limited
contact with workplace hazards and pulmonary irritants (see Tr.
410).
15
Here, the ALJ’s evaluation of Dr. Holt’s opinion complied with
the
regulatory
requirements.
The
ALJ
discounted
Dr.
Holt’s
opinion, noting that the “opinion is not supported by his own
treatment records, which indicate minimal physical abnormalities
and which indicate that [Plaintiff’s] pain has generally been
responsive to treatment with pain relievers.”
(Tr. 20.)
Earlier
in the decision, the ALJ noted as follows with regard to Dr. Holt’s
treatment records:
The treatment notes from Dr. Holt indicate that
[Plaintiff’s] chronic pain has been adequately controlled
with opioid management.
He is prescribed opana,
percocet, and methadone.
He has only required visits
every few months. The treatment notes indicate that he
generally
reports feeling
well with
only
minor
complaints. He said that he had a good energy level. He
had only occasional breakthrough pain.
Dr. Holt’s
treatment notes do not indicate that [Plaintiff] has had
any significant physical abnormalities.
There is no
indication that he has any neurological abnormalities
indicative of nerve root compression.
. . .
The subsequent treatment notes from Dr. Holt reveal that
[Plaintiff] has continue to have back pain that appears
to wax and wane, depending on his activity. At times, he
reported . . . being overwhelmed by his chronic back
pain, in conjunction with abuse from family members. At
other times, he reported having only occasional
breakthrough pain. It was noted in January 2013 that his
pain had increased after he was roofing the house. He
developed neck pain after sleeping on the sofa.
[Plaintiff’s] physical findings remained the same with no
evidence of inflammation or neurological deficits.
(Tr. 18.)
As correctly noted by the ALJ, Dr. Holt’s treatment records do
not support his extreme restrictions, which effectively would
16
preclude Plaintiff from even sedentary work as generally described,
see Social Security Ruling 83-10, Titles II and XVI: Determining
Capability to Do Other Work – the Medical-Vocational Rules of
Appendix 2, 1983 WL 31251, at *5 (1983) (noting that sedentary work
entails “good use of the hands and fingers for repetitive handfinger actions[,]
.
.
.
and
sitting
[]
generally
approximately 6 hours of an 8-hour workday”).
total[ing]
The record reflects
that Plaintiff visited Dr. Holt on 13 occasions between December
16, 2011 and November 17, 2014.
415-30.)
(See Tr. 340-51, 374-83, 401-03,
At these visits, which consisted primarily of routine
follow-ups for pain medication refills, Dr. Holt consistently found
Plaintiff’s gait normal and his lungs clear, and documented no
objective musculoskeletal or neurological abnormalities. (See id.)
On the one occasion Dr. Holt made musculoskeletal and neurological
findings, he documented that Plaintiff exhibited full range of
motion in his cervical spine (see Tr. 416), and normal reflexes,
coordination, and sensation (see Tr. 417).
Given these record
facts, substantial evidence supports the ALJ’s decision to discount
Dr. Holt’s opinion as inconsistent with his own treatment records.
According to Plaintiff, even if Dr. Holt’s opinion did not
warrant controlling weight, the ALJ erred by failing to weigh Dr.
Holt’s opinion using the applicable factors in the regulations,
“which include: (1) length of the treatment relationship; (2)
frequency of examination; (3) nature and extent of the treatment
17
relationship; (4) support of the opinion afforded by medical
evidence; (5) consistency of the opinion with the record as a
whole; and, (5)[sic] specialization of the treating physician.”
(Docket
Entry
416.927(d)).)
11
at
7-8
(citing
20
C.F.R.
§§
404.1527(d),
Plaintiff’s argument improperly focuses solely on
the paragraph in which the ALJ discounted Dr. Holt’s opinion.
A
review of the ALJ’s decision as a whole demonstrates that she did
consider the relevant factors.
Regarding the length of the treatment relationship and the
frequency of examination, the ALJ expressly recited Plaintiff’s
testimony that Dr. Holt had treated Plaintiff for seven years (see
Tr. 17; see also Tr. 47) and observed that Plaintiff “has only
required visits
[with
Dr. Holt]
every
few
months”
(Tr.
18).
Addressing the nature and extent of the treatment relationship, the
ALJ noted that Plaintiff’s “chronic pain has been adequately
controlled with opioid management,” that Dr. Holt “prescribed
opana, percocet, and methadone” (id.), and that Plaintiff “has not
required surgery or such other aggressive measure for pain relief
as use of steroid medication, epidural injections, application of
TENS equipment, or enrollment in [a] physical therapy program” (Tr.
19).
Moreover, consistent with the obligation to consider the
opinion’s relationship to medical evidence and the overall record,
the ALJ expressly found that Dr. Holt’s own treatment records did
not support his opinion (Tr. 20), and noted Plaintiff’s own report
18
“that, despite his back pain, he was able to perform all normal
activities of daily living” (Tr. 18).
Lastly, Plaintiff has
identified no record evidence that Dr. Holt practices in an area of
medical specialization.
(See Docket Entry 11.)
In short, the ALJ did not err in evaluating Dr. Holt’s
opinion.
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
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
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 14)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 24, 2017
19
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