FLYTHE v. BERRYHILL
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 9/20/2018; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment Reversing Decision of the Commissioner of Social Security (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOSEPH WILLIAM FLYTHE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
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1:17CV591
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Joseph William Flythe, 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
claim
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)
Defendant has filed the certified administrative record
(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 10, 12; see also Docket Entry 11
(Plaintiff’s Brief); Docket Entry 13 (Defendant’s Memorandum)).
For the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI.
(Tr. 247-51, 253-60.)
Upon denial of those applications initially (Tr. 86-119, 156-67)
and on reconsideration (Tr. 120-51, 169-86), Plaintiff requested a
hearing
de
novo
before
an
Administrative
Law
Judge
(“ALJ”)
(Tr. 187). Plaintiff, his attorney, and a vocational expert (“VE”)
attended the hearing.
(Tr. 41-85.)
The ALJ subsequently ruled
that Plaintiff did not qualify as disabled under the Act.
(Tr. 7-
22.) The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 37-38, 391-93), 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 June 30, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since February 28, 2011, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease of the cervical and lumbar
spine, status post multiple fractures, and chronic
obstructive pulmonary disease.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform sedentary work . . . except
[Plaintiff] would be limited to standing two to three
minutes every hour; occasional balancing, stooping,
kneeling, crouching, and crawling; no climbing ladders;
and avoiding fumes and hazards.
. . .
2
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [he] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from February 28, 2011, through
the date of this decision.
(Tr.
12-21
(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 argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ’s physical RFC determination is unsupported by
substantial evidence as the ALJ erred in failing to give treating
physician Dr. [Jason J.] Van Eyk controlling weight . . . [and]
because the ALJ erred in weighing and evaluating the opinion of
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
consultative examiner Dr. [Peter D.] Morris” (Docket Entry 11 at 3
(bold font and single-spacing omitted)); and
2) “[t]he ALJ’s [s]tep [five] finding is not supported by
substantial evidence” (id. at 8 (bold font and single-spacing
omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 13 at 3-14.)
1. Medical Opinion Evidence
In Plaintiff’s first assignment of error, he alleges that
“[t]he
ALJ’s
physical
RFC
determination
is
unsupported
by
substantial evidence as the ALJ erred in failing to give treating
physician Dr. Van Eyk controlling weight.”
(Docket Entry 11 at 3
(bold font and single-spacing omitted).)
In particular, Plaintiff
contends that
is
treatment
“Dr.
notes
Van
and
Eyk’s
other
opinion
evidence
in
consistent
the
record,
with his
including
treatment notes from other physicians, objective medical evidence,
and opinion evidence supplied by Dr. Morris.
reasons
for
giv[ing]
requiring remand.”
Dr.
Van
Eyk
(Id. at 5.)
little
Thus, the ALJ’s
weight
are
flawed,
According to Plaintiff, “[t]he
ALJ’s failure to appropriately weigh Dr. Van Eyk’s opinion is
harmful because had Dr. Van Eyk’s opinion been afforded controlling
weight, the ALJ would have found Plaintiff disabled.”
(Id. at 7.)
Plaintiff further maintains that “the ALJ erred in weighing
and evaluating the opinion of consultative examiner Dr. Morris”
8
(id. at 3 (bold font and single-spacing omitted)), because the ALJ
“improperly cherry picked from Dr. Morris’s opinion in [an] attempt
to devise an RFC favoring non-disability” (id. at 7). In addition,
Plaintiff argues that, “[i]f the ALJ felt that [Dr. Morris’s
opinion] was not sufficiently functional, the ALJ should have
recontacted Dr. Morris for an opinion with functional limitations.”
(Id.
at
8
(citing
20
C.F.R.
§§
404.1512(e),
416.912(e)).)
Plaintiff’s contentions do not warrant relief.
a. Dr. Van Eyk’s Opinions
As a general rule, an ALJ must give controlling weight to the
opinion of a treating source regarding the nature and severity of
a
claimant’s
impairment.
See
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
examinations or brief hospitalizations.”).
as
consultative
The treating source
rule also recognizes, however, that not all treating sources or
treating source opinions merit the same deference.
The nature and
extent of each treatment relationship appreciably tempers the
weight
an
ALJ
affords
an
opinion.
See
20
C.F.R.
§§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii). Moreover, as subsections
(2) through (4) of the rule describe in great detail, a treating
9
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.
See 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 May 27, 2016, Dr. Van Eyk completed an “[RFC]
Questionnaire” (Tr. 816-17), diagnosing Plaintiff with chronic pain
syndrome, back pain, hip pain, and left leg sciatica (see Tr. 816).
Dr.
Van
Plaintiff
Eyk
opined
could
that,
lift
as
and/or
a
result
carry
of
fewer
those
than
impairments,
ten
pounds
occasionally, could sit for 15 minutes at a time and for a total of
one hour in an eight-hour workday, could stand/walk for five
minutes at a time and for one hour total in an eight-hour workday,
and needed breaks to recline or lie down in excess of regularly
scheduled rest periods.
(See id.)
Dr. Van Eyk also believed that
Plaintiff’s pain would “constantly” rate as severe enough to
interfere with attention and concentration required to perform
simple tasks (id.), that Plaintiff could grasp, turn, and twist
objects for only 50 percent of the workday with his left hand (see
Tr. 817), and that Plaintiff’s impairments would cause him to miss
work more than four times per month (see id.).
10
Dr. Van Eyk
concluded that Plaintiff lacked the “physical[] capab[ility] [to]
work[] an 8 hour day, 5 days a week employment on a sustained
basis.”
(Id.)
On November 8, 2016, Dr. Van Eyk completed a similar “Physical
Assessment” (Tr. 1051-52); however, on this check-box form, Dr. Van
Eyk opined that Plaintiff’s pain “never” rated as severe enough to
interfere with attention and concentration required to perform
simple tasks, and that Plaintiff could not engage in any lifting
and/or carrying of any weight (Tr. 1051).
Van Eyk indicated
On this occasion, Dr.
that he could not offer an opinion as to
Plaintiff’s manipulative limitations, because Dr. Van Eyk “[was]
not a physical therapist.”
(Id.)
The ALJ discussed Dr. Van Eyk’s proffered restrictions (see
Tr. 16-17), and then assessed the opinions as follows:
The [ALJ] gives little weight to Dr. Van Eyk’s
assessments and opinion and finds that they were not
consistent with the overall evidence of record, including
the notes from his practice, which indicated that
[Plaintiff’s] physical examinations were unremarkable,
his treatment was conservative, and that [Plaintiff’s]
complaints of pain were generally subjective in nature.
(Tr. 17.)
Plaintiff challenges the ALJ’s findings that Dr. Van
Eyk’s opinions lacked consistency with the overall evidence of
record and his own treatment notes.
(See Docket Entry 11 at 5-7.)
According to Plaintiff, “[d]uring examinations, Dr. Van Eyk noted
that Plaintiff had a slow gait and was unable to walk for long
periods
of
time,”
prescribed
multiple
11
pain
medications
which
Plaintiff reported did not control his pain, and “noted that
Plaintiff had physical therapy, but it did not help.”
(Id. at 5.)
Additionally, Plaintiff maintains that Dr. Van Eyk’s opinions
harmonize with treatment notes from Plaintiff’s hand surgeon, Dr.
Laurence Dahners (id. at 6 (citing Tr. 490, 495, 498)); a treatment
note from Plaintiff’s pain management doctor, Dr. Kevin Barry Shute
(id. (citing Tr. 475-76)); the opinions of consultative examiner
Dr. Morris (id. at 6-7 (citing Tr. 779, 780, 782, 783)); and the
“imaging in the record” (id. at 7 (citing Tr. 415, 416, 475, 476,
506)).
Substantial evidence supports the ALJ’s finding that Dr. Van
Eyk’s opinions conflicted with treatment “notes from his practice,
which indicated
unremarkable,
that
his
[Plaintiff’s]
treatment
was
physical
examinations
conservative,
and
were
that
[Plaintiff’s] complaints of pain were generally subjective in
nature.” (Tr. 17.) The record reflects that Plaintiff visited Dr.
Van Eyk on nine occasions between November 2013 and November 2016
with complaints of chronic back, hip, and leg pain.
(See Tr. 452-
67, 826-44, 1053-56; see also Tr. 441-50 (documenting three visits
to Dr. Van Eyk prior to November 2013 for treatment of upper
respiratory
infections
and
a
swollen
eye,
and
Plaintiff’s denial of musculoskeletal complaints)).
reflecting
On each of
those nine occasions, Dr. Van Eyk documented no objective findings
regarding Plaintiff’s lumbar spine or hips, found Plaintiff “in no
12
acute
distress,”
and
noted,
regarding
Plaintiff’s
lower
extremities, “no joint or limb tenderness to palpation, no edema
present, no ecchymosis” (Tr. 453-54, 458-59, 462-63, 466-67, 828,
832, 836-37, 843, 1055), and on five occasions, further documented
“range of motion normal, no joint crepitations present, no pain on
motion” regarding Plaintiff’s lower extremities (Tr. 828, 832, 83637, 843, 1055).
Moreover, Dr. Van Eyk’s extreme limitations, in
large part, mirror Plaintiff’s subjective reports on the date that
he
requested
Dr.
Van
Eyk
to
complete
disability
paperwork.
(Compare Tr. 835 (reflecting Plaintiff’s statements to Dr. Van Eyk
that “[h]e is unable to sit for more than 15 minutes before his
pain becomes unbearable,” that “[h]e can walk maybe 50 feet before
he has to rest due to his pain,” that “he could work if he could
lie down and do a job doing that,” that “he can stand for about 5
minutes,” that he “probably cannot do more than an hour of sitting
or standing . . . [and] cannot lift much weight due to his pain”),
with Tr. 816-17 (Dr. Van Eyk’s RFC Questionnaire restricting
Plaintiff
to
lifting
and/or
carrying
fewer
than
ten
pounds
occasionally, sitting for 15 minutes at a time and for a total of
one hour in an eight-hour workday, and standing/walking for five
minutes at a time and for one hour total in an eight-hour workday,
and requiring breaks for Plaintiff to recline or lie down in excess
of regularly scheduled rest periods).)
13
Regarding Plaintiff’s argument that Dr. Van Eyk’s opinions
harmonize with treatment notes from Drs. Dahners, Shute, and
Morris, and diagnostic imaging reports in the record (Docket Entry
at 6-7), Plaintiff misinterprets this Court’s standard of review.
The Court must determine whether the ALJ supported her decision to
reject Dr. Van Eyk’s opinions with substantial evidence, and not
whether other record evidence weighs against the ALJ’s analysis,
Lanier, 2015 WL 3622619, at *1 (“The fact that [the p]laintiff
disagrees with the ALJ’s decision, or that there is other evidence
in the record that weighs against the ALJ’s decision, does not mean
that the decision is unsupported by substantial evidence.”).
Here, although the ALJ did not specify the objective evidence
that failed to support Dr. Van Eyk’s opinions in the same paragraph
in which she weighed those opinions (see Tr. 16-17), elsewhere in
the ALJ’s decision, she detailed evidence that did not support Dr.
Van Eyk’s extreme limitations (see Tr. 16-19).
suffices.
That approach
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 an “ALJ analyzes a claimant’s
medical
evidence
in
one
part
of
14
his
decision,
there
is
no
requirement that he rehash that discussion” in other parts of his
analysis).
In particular, the ALJ noted:
•
“Although [Plaintiff’s] alleged onset date was
February 28, 2011, there was no indication of
[Plaintiff] receiving medical treatment after
December 1, 2010 through January 31, 2012, a period
of nearly a year following the alleged onset date”
(Tr. 16);
•
On September 9, 2013, Plaintiff underwent hip
arthroscopy which resolved his sciatic nerve palsy
(Tr. 17);
•
On October 13, 2013, “physical examination showed
full range of motion of the hip and left ankle
without tenderness and with sensation intact;
surgical sites were well healed; and his grip
showed no deformity in the fingers” (id.);
•
A treatment note dated December 27, 2013, “showed
that [Plaintiff’s] left hand fracture had healed
and his hand was completely functional, but he had
a dorsal prominence” and, on February 6, 2014,
following removal of the prominence, Plaintiff “was
doing very well” and “had full painless range of
motion of the hand” (id.);
•
“On June 6, 2014, August 15, 2014, and June 17,
2016, the [treatment] notes showed that his
physical examinations were unremarkable with normal
sensation and normal gait” (id.);
•
“[O]n June 28, 2014, a consultative examination by
Dr. Morris showed that [Plaintiff] was able to
fully flex and extend all fingers bilaterally” (Tr.
19); and
•
Plaintiff “engaged in work activity after the
alleged
onset
date,
including
after
[his
motorcycle] accident [in August 2013].
For
example, in December 2013, [Plaintiff] reported
that he was working as a mechanic; in January 2014,
the notes indicated that [Plaintiff] was assaulted
at work; and in June 2014, [Plaintiff] reported
that he was working, performing heavy lifting and
landscaping” (id.).
15
The
ALJ’s
above-described
analysis
confirms
that
substantial
evidence supports her finding that “Dr. Van Eyk’s assessments and
opinion[s] . . . were not consistent with the overall evidence of
record.”
(Tr. 17.)
b. Dr. Morris’ Opinions
Consultative examiners such as Dr. Morris do not constitute
treating
sources
under
the
regulations,
see
20
C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2), and thus their opinions, as a
general proposition, do not warrant controlling weight, Turberville
v. Colvin, No. 1:11CV262, 2014 WL 1671582, at *6 (M.D.N.C. Apr. 23,
2014) (unpublished) (Auld, M.J.), recommendation adopted, slip op.
(M.D.N.C. May 15, 2014) (Eagles, J.).
nevertheless
evaluate
consultative
However, the ALJ must
opinions
using
the
factors
outlined in the regulations, and expressly indicate and explain the
weight
he
or
she
affords
to
such
opinions.
See
20
C.F.R.
§§ 404.1527(c), 416.927(c) (“Regardless of its source, [the ALJ]
will evaluate every medical opinion [he or she] receive[s]” and
where an opinion does not warrant controlling weight, the ALJ must
“consider all of the . . . factors [in 20 C.F.R. §§ 404.1527(c)(1)(6), 416.927(c)(1)-(6)] in deciding the weight [to] give to any
medical opinion.”).
The ALJ here provided a detailed summary of Dr. Morris’
findings and opinions:
On June 28, 2014, [Dr. Morris] performed a consultative
physical evaluation on [Plaintiff] for disability
16
purposes. Based on the evaluation, Dr. Morris noted that
[Plaintiff] had tenderness in the lumbar spine and
musculature of the lower back; he had some tenderness of
the thoracic spine; he had mild tenderness in the left
ankle; straight leg raising was positive on the left side
in the seated position; and he had slight difficulty
opening [a] water bottle and picking up a paper clip with
the left hand.
Dr. Morris diagnosed [Plaintiff] with
chronic low back pain due to degenerative disk disease
with
left
lower
extremity
radiculopathy;
slight
difficulty using the left hand, status post injury and
surgeries; chronic left hip pain, status post injury;
COPD; hypertension; and possible depression. Dr. Morris
opined that [Plaintiff] would have mild limitations
sitting; severe limitations with standing and walking due
to his slow and antalgic gait; an inability to heel, toe,
and tandem walk; decreased range of motion in the lower
back, hips, and left ankle; slightly decreased motor
strength in the left foot; [and] pain and tenderness in
the back, left hip and left ankle; severe limitations in
lifting or carrying due to his slow and antalgic gait;
mild limitations in reaching, handling, feeling and
grasping; and severe postural limitations in bending,
stooping, crouching, and squatting due to his stated
inability to perform postural maneuvers.
Dr. Morris
noted it was uncertain if [Plaintiff] would need an
assistive device for ambulation because [Plaintiff] would
not attempt any ambulatory maneuvers without the use of
his cane on the physical examination.
(Tr. 17-18.) The ALJ then weighed Dr. Morris’ opinions as follows:
The [ALJ] gives partial weight to Dr. Morris’ opinion
because he examined [Plaintiff] and internal medicine was
his area of speciality. The [ALJ] did not give greater
weight to Dr. Morris’ opinion because it was not
sufficiently functional in nature and it was based on a
one-time examination. The [ALJ] also notes that although
[Plaintiff] reported [to Dr. Morris] use of a cane and
ambulatory limitations, the evidence of record showed
that
his
physical
examinations
were
generally
unremarkable with normal gait.
(Tr. 17 (emphasis added).)
Although Plaintiff maintains that “[t]he ALJ . . . improperly
cherry picked from Dr. Morris’s opinion in [an] attempt to devise
17
an RFC favoring non-disability” (Docket Entry 11 at 7; see also id.
at 8 (accusing ALJ of “picking and choosing the evidence from Dr.
Morris’s opinion that supported [the ALJ’s] own RFC finding”)), the
ALJ’s above-quoted thorough summary of Dr. Morris’ findings and
opinions, including both those that favor Plaintiff and those that
do not, makes clear that Plaintiff’s accusation of “cherry picking”
misses the mark.
Moreover, in the RFC, the ALJ limited Plaintiff to sedentary
exertion, which constitutes the lowest level of exertion in the
regulations, see 20 C.F.R. §§ 404.1567, 416.967, further modified
the sedentary level of exertion by limiting Plaintiff to two to
three minutes of standing per hour, and restricted Plaintiff to
only occasional postural movements.
(See Tr. 13-14.)
Plaintiff
has made no attempt to show how the ALJ’s full adoption of Dr.
Morris’ “severe” limitations on Plaintiff’s ability to stand, walk,
lift, carry, and engage in postural movements (Tr. 783) would have
compelled the ALJ to adopt an even more restrictive RFC.
Docket Entry 11 at 7-8.)
front.
(See
That failure precludes relief on this
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (“[A] litigant has an obligation to spell out its arguments
squarely and distinctly, or else forever hold its peace.” (internal
quotation marks omitted)); Hughes v. B/E Aerospace, Inc., No.
1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014)
18
(unpublished) (“A party should not expect a court to do the work
that it elected not to do.”).
Plaintiff next argues that, “[i]f the ALJ felt that [Dr.
Morris’s opinion] was not sufficiently functional, the ALJ should
have
recontacted
limitations.”
§§
Dr.
Morris
(Docket
404.1512(e),
for
Entry
416.912(e)).)
an
11
opinion
at
8
However,
with
(citing
as
functional
20
argued
C.F.R.
by
the
Commissioner (see Docket Entry 13 at 10-11), the regulations relied
upon by Plaintiff, “which imposed a duty to recontact on ALJs when
the evidence from a treating physician was inadequate to make a
disability determination, ha[ve] not been in effect since 2012,”
Penny v. Berryhill, No. 1:15CV1074, 2017 WL 590343, at *6 (M.D.N.C.
Feb. 14, 2017) (unpublished) (Peake, M.J.) (internal quotation
marks omitted), recommendation adopted, 2017 WL 1155056 (M.D.N.C.
Mar. 27, 2017) (unpublished) (Biggs, J.).
Under the applicable
regulations, the ALJ must recontact a consultative examiner when
the examiner’s report qualifies as “inadequate or incomplete.”
C.F.R. §§ 404.1519p(b), 416.919p(b).
20
Moreover, “the absence of a
medical opinion in a consultative examination report will not make
the
report
incomplete.”
416.919n(c)(6).
20
C.F.R.
§§
404.1519n(c)(6),
Thus, by logical extension, the “[in]sufficiently
functional” (Tr. 17) opinions in Dr. Morris’ consultative report
did not require the ALJ here to recontact Dr. Morris, especially
where the ALJ thoroughly considered the entire record to reach her
19
disability determination. See Dooley v. Commissioner of Soc. Sec.,
656
F.
App’x
113,
122
(6th
Cir.
2016)
(“[A]lthough
[the
consultative examiner] failed to clarify her limitation against
“excessive” bending, kneeling, or squatting, this failure does not
render
her
report
incomplete
.
.
.
because
a
consultative
examiner’s report is not rendered incomplete by the absence of a
statement
about
limitations.”
what
a
(citing
claimant
20
can
still
C.F.R.
§§
do
despite
his
404.1519n(c)(6);
416.919n(c)(6))).
In short, the ALJ did not err in his evaluation and weighing
of the opinions of Drs. Van Eyk and Morris.
2. Step Five Finding
In Plaintiff’s second and final assignment of error, he
contends that “the hypothetical question [the ALJ] asked to the VE
here was incomplete, as it improperly did not include the credited
limitations opined by Dr. Van Eyk.”
According
to
Plaintiff,
“[h]ad
the
(Docket Entry 11 at 8.)
ALJ
included
th[o]se
limitations, the [VE’s] response and available jobs may have been
significantly different.”
(Id.)
However, as discussed above, the
ALJ did not err in his decision to discount the opinions of Dr. Van
Eyk. Accordingly, the ALJ labored under no obligation to adopt all
of Dr. Van Eyk’s opined limitations in the RFC or the hypothetical
questions he directed to the VE.
20
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 Decision of the Commissioner of Social Security
(Docket Entry 10) be denied, that Defendant’s Motion for Judgment
on the Pleadings (Docket Entry 12) be granted, and that this action
be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 20, 2018
21
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