FLYTHE v. BERRYHILL
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR. on 6/3/2019. For the reasons explained in this Memorandum Opinion, the United States Magistrate Judge's Recommendation is ADOPTED and the Commis sioner's decision finding no disability is AFFIRMED, Plaintiff's Motion for Judgment Reversing Decision of the Commissioner of Social Security (Doc. # 10 ) is DENIED, Defendant's Motion for Judgment on the Pleadings [Doc. # 12 ) is GRANTED, and this action is DISMISSED WITH PREJUDICE. (Daniel, J)
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 ORDER
On September 20, 2018, in accordance with 28 U.S.C. § 636(b), the
Memorandum Opinion and Recommendation of the United States Magistrate Judge
(“Recommendation”) was filed and served on the parties in this action. [Docs. #14,
15.] The Magistrate Judge recommended denying Plaintiff’s Motion for Judgment
Reversing Decision of the Commissioner of Social Security, [Doc. #10], granting
Defendant’s Motion for Judgment on the Pleadings, [Doc. #12], and dismissing
this action with prejudice. Plaintiff Joseph William Flythe timely objected to the
Recommendation, [Doc. #16], to which Defendant responded. The Court has
reviewed de novo the portions of the Recommendation to which Flythe has
objected and assessed for clear error the portions of the Recommendation to which
no objection was made. The Recommendation is adopted.
Flythe’s objections focus entirely upon the Recommendation’s approval of
the Administrative Law Judge’s (“ALJ’s”) treatment of the opinion of Dr. Peter D.
Morris who performed a consultative physical evaluation of Flythe. Initially before
this Court, Flythe argued that the ALJ “cherry picked from Dr. Morris’s opinion in
attempt to devise an RFC favoring non-disability.” (Pl.’s Br. in Supp. of [His] Mot.
at 7 [Doc. #11].) According to Flythe, the ALJ “offered no real explanation as to
how” the “severe limitations” in Dr. Morris’s opinion are consistent with Flythe’s
residual functional capacity (“RFC”). (Id. at 8.) And, when the ALJ afforded Dr.
Morris’s opinion only partial weight because it was “’not sufficiently functional in
nature and it was based on a one-time examination’”, she “should have
recontacted Dr. Morris for an opinion with functional limitations.” (Id. (quoting the
ALJ’s Decision (Administrative Record (“A.R.”) 18)).) In his objections, Flythe also
highlights the ALJ’s statement, at the end of her review of Dr. Morris’s opinion,
“that although the claimant reported use of cane and ambulatory limitations, the
evidence of record showed that his physical examinations were generally
unremarkable with normal gait” to which she cited one treatment note as an
example, but which Flythe contends is not supported by the weight of the
evidence. (Pl.’s Objs. at 2 (citing ALJ’s Decision (A.R. 171)).)
Dr. Morris examined Flythe on June 28, 2014, at which time Flythe’s chief
complaint was back pain. (A.R. 779.) Dr. Morris reviewed Flythe’s medical records
including results of CTs in 2014 of his head, cervical spine, lumbar spine, thoracic
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Although Flythe repeatedly cites to “T 17” in his Objections, the weight accorded
to Dr. Morris’s opinion and the ALJ’s explanation for affording partial weight are on
page 18 of the Administrative Record, as he properly cited in his Brief in Support
of His Motion.
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spine, and chest, abdomen, and pelvis, a chest x-ray, and a 2013 MRI of the
lumbar spine. (A.R. 779-80.) He discussed with Flythe his symptoms and
treatment for backpain, COPD, activities of daily living, medications, past surgeries
and illness, and family and social histories. (A.R. 780-81.) Dr. Morris examined
Flythe’s general appearance, mental status, vital signs, HEENT, neck, lungs,
cardiovascular system, abdomen, extremities, skin, range of motion, and
neurologic system. (A.R. 781-82.) During his exam, Flythe “would not attempt
any ambulatory maneuvers without the use of his cane”. (A.R. 783; see also A.R.
781 (noting that Flythe “chose not to ambulate without the use of his cane”,
“stated that he would rather not try that because of a risk of falling”, and “did not
try anything without his cane”), 782 (noting that Flythe “would not try heel, toe,
or tandem walking, stating he could not do them” and “stated he could not squat
or kneel” and that Dr. Morris “did not test for Romberg [or heel-to-shin] because he
would not let go of his cane”).) After making general findings and diagnoses, Dr.
Morris offered a functional assessment. (A.R. 782-83.)
It is estimated that the claimant would have mild limitations with
sitting. It is estimated he would have severe limitations with standing
and walking due to his slow and antalgic gait; his stated inability to
heel, toe, and tandem walking; he has decreased range of motion in
the lower back, hips, and left ankle; a slightly decreased motor
strength in the left lower extremity; his atrophy in the left lower
extremity; his decreased sensation in the left foot; and his pain and
tenderness in the back, left hip, and left ankle. It is estimated, the
claimant would have severe limitations to lifting or carrying due to his
slow and antalgic gait; his stated inability to heel, toe, and tandem
walking; he has decreased range of motion in the lower back, hips,
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and left ankle; a slightly decreased motor strength in the left lower
extremity; his atrophy in the left lower extremity; his decreased
sensation in the left foot; and his pain and tenderness in the back, left
hip, and left ankle. It is estimated the claimant would have mild
manipulative limitations to reaching, handling, feeling, and grasping on
the left. It is estimated he has had no manipulative limitations to
reaching, handling, feeling, or grasping on the right. It is estimated he
will have severe postural limitations to bending, stooping, crouching,
and squatting due to his stated inability to perform postural
maneuvers on exam. No visual or communicative limitations are
expected.
(A.R. 783.) Dr. Morris then noted, “It is uncertain if an assistive device is
necessary for ambulation because the claimant would not attempt any ambulatory
maneuvers without the use of his cane on physical examination.” (A.R. 783.)
After quoting nearly the entirety of Dr. Morris’s report, the ALJ accorded Dr.
Morris’s opinion partial weight because, while he examined Flythe and he is a
specialist in internal medicine, his opinion was “not sufficiently functional in nature
and it was based on a one-time examination.” (A.R. 17-18.) The ALJ then noted,
“that although the claimant reported use of cane and ambulatory limitations, the
evidence of record showed that his physical examinations were generally
unremarkable with normal gait.” (A.R. 18 (citing, as an example, Ex. 24F, p. 75).)
Ultimately, the ALJ determined that Flythe’s RFC is less than a full range of
sedentary work. (A.R. 13.) Specifically, Flythe’s RFC is sedentary work, “except
[he] 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.” (A.R. 13-14.)
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First, as a general matter, the ALJ did not “cherry pick” from Dr. Morris’s
opinion in her determination. To the contrary, she considered in detail the extent
of Dr. Morris’s report and ultimate assessment and then accorded his opinion
partial weight. (See A.R. 17-18.)
Next, the ALJ’s criticism that Dr. Morris’s opinion “was not sufficiently
functional in nature” did not trigger her duty to contact Dr. Morris for clarification.
The regulations provide that the Commissioner “will contact the medical source
who performed the consultative examination” to request missing information or a
revised report “[i]f a report is inadequate or incomplete”. 20 C.F.R.
§§ 404.1519p(b), 416.919p(b). The same regulation explains that a report should
“provide[] evidence which serves as an adequate basis for decisionmaking in terms
of the impairment it assesses”, 20 C.F.R. §§ 404.1519p(a)(1), 416.919p(a)(1),
while 20 C.F.R. §§ 404.1519n(c)(1)-(7), 416.919n(c)(1)-(7) provides the elements
of a “complete consultative examination”. A report “is not rendered incomplete by
the absence of a statement about what a claimant can still do despite his
limitations.” Dooley v. Comm’r of Soc. Security, 656 F. App’x 113, 122 (6th Cir.
July 28, 2016) (unpublished); see also 20 C.F.R. §§ 404.1519n(c)(6),
416.919n(c)(6) (explaining that the absence of a medical opinion will not make a
report incomplete).
Flythe concedes “that the lack of an opinion within a consultative
examiner’s report does not render the report incomplete”, but he maintains Dr.
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Morris’s opinion is inadequate because it “does not provide an adequate basis for
the ALJ to reach a decision”, as she herself acknowledged when she described the
opinion as “not sufficiently functional in nature”. (Pl.’s Objs. at 3-4.) Although the
ALJ characterized Dr. Morris’s opinion as “not sufficiently functional in nature”, his
report nevertheless served as an adequate basis for decisionmaking in terms of the
impairments it assessed. As described above, Dr. Morris documented results from
recent CTs and MRIs and Flythe’s report of back pain symptoms and treatment,
performed thorough range of motion testing, detailed Flythe’s performance in
neurologic testing, offered generalized findings, diagnosed Flythe’s ailments, and
provided a lengthy functional assessment of Flythe’s limitations, among other
information he included such as a review of Flythe’s COPD, activities of daily
living, medications, past medical history, history of smoking cigarettes, and general
appearance, and assessments of Flythe’s mental status, vital signs, HEENT, neck,
lungs, cardiovascular system, abdomen, extremities, and skin. Dr. Morris’s
examination and evaluation of Flythe cannot be described as incomplete – or
inadequate. See Cummings v. Colvin, No. 1:14CV520, 2016 WL 698081, *5
(M.D.N.C. Feb. 19, 2016) (finding consultative examiner’s report neither
inadequate nor incomplete when the physician “documented Plaintiff’s medical
history and her subjective complaints, performed exhaustive range of motion
testing, administered pulmonary function tests, generated a full set of objecting
findings regarding Plaintiff’s strength and neurological functioning, and offered
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opinions regarding limitations on Plaintiff’s abilities to do work-related activities”)
(internal citations omitted), adopted, Order & J. (Mar. 15, 2016). Therefore, the
regulations did not require the ALJ to contact Dr. Morris for clarification.
Next, Flythe argues that the ALJ’s failure to accord greater weight to Dr.
Morris’s opinion because it was based on one examination is “not a legitimate
reason to give less weight to a consultative examiner” and quotes Smith v. Colvin,
No. 4:15-CV-175-RN, 2017 WL 27942, at *8 (E.D.N.C. Jan. 3, 2017), in support.
(Pl.’s Objs. at 2-3.) The Smith court recognized the quandary presented when
regulations provide as a factor for evaluating medical evidence the length of the
treatment relationship, while a consultative examination, by its nature, is limited.
2017 WL 27942, at *8. The court found that “affording little weight to the
opinions of [the consultative examiners] because they were one-time examiners,
without more, fails to articulate a sufficient basis to discount these assessments.”
Id. (emphasis added). The facts here are distinguishable from those in Smith. The
ALJ explained the content of Dr. Morris’s report thoroughly before assessing his
opinion partial weight because, not only was it based on a one-time examination,
but it was not sufficiently functional. Furthermore, to the extent the opinion was
based on Flythe’s reported use of a cane and ambulatory limitations, the ALJ found
that the medical record suggested otherwise, as does Flythe’s reported work after
his alleged onset date, as further explained below. In other words, the fact that
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the consultation was Flythe’s only visit to Dr. Morris was not the only reason the
ALJ did not give his opinion more weight.
Moreover, although the regulations require an ALJ to evaluate every medical
opinion she receives, 20 C.F.R. §§ 404.1527(c), 416.927(c), they recognize that
non-treating sources like consultative examinations are generally given less weight
than treating source opinions because treating sources are “most able to provide a
detailed, longitudinal picture” of the claimant’s impairments “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”, 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). When determining the weight to accord
“any medical opinion”, the ALJ considers a number of factors, including the length
of the relationship and the frequency of the examination. 20 C.F.R.
§§ 404.1527(c), 416.927(c). Here, the ALJ did as the regulations required; she
considered, among other factors, the length of the relationship and the frequency
of examination in assessing the weight to assign to Dr. Morris’s opinion.
Finally, Flythe argues that the ALJ’s rejection of Dr. Morris’s opinion based
on evidence that Flythe’s gait was normal is not supported by the evidence or the
law. (Pl.’s Objs. at 2.) Specifically, he asserts that, “When the weight of the
evidence is so heavily skewed to one side, the ALJ’s rejection of the opinion based
on limited treatment notes will not be upheld.” (Id.) However, the ALJ did not
reject Dr. Morris’s opinion, nor did she discredit it simply based on the treatment
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note she cited in support of her criticism of Flythe’s reported use of a cane and
ambulatory limitations during Dr. Morris’s examination. She accorded his opinion
partial weight and did so based on additional reasons explained above.
To the extent that her characterization of the record reflecting Flythe’s gait
is incomplete, Flythe fails to meet his burden of establishing that any error was
harmful, see Shinseki v. Sanders, 556 U.S. 396, 409 (2009). “In social security
cases, an ALJ’s errors are harmless so long as the ALJ’s conclusion is supported
by substantial evidence in the record and the claimant could not reasonably have
been prejudiced by the error.” Emrich v. Colvin, 90 F. Supp. 3d 480, 488
(M.D.N.C. 2015). Substantial evidence is that “which a reasoning mind would
accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739
F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966)). “It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.” Id. (quoting Laws, 368 F.2d at 642). Here,
any possible error could not reasonably have prejudiced Flythe and substantial
evidence supports the weight the ALJ gave to Dr. Morris’s opinion.
Flythe contends that there are only three examinations in the entire record
that note his gait is normal and those are part of treatment he received for possible
lung problems. (Pl.’s Objs. at 2.) He cites to other treatment notes, though, from
Dr. Jason Van Eyk, his primary care physician, Dr. Kevin Shute, to whom Dr. Van
Eyk referred Flythe for evaluation of pain and whom Flythe saw once, Dr. Morris,
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and, Jake Ricketson, Psy. D., the psychological consultative examiner who all
documented problems with his gait. (Id.)
Flythe is correct in that the treatment note the ALJ cited as an example
reflects a June 17, 2016 referral examination for “spots on lung” detected when
Flythe was receiving treatment in August 2013 for injuries sustained from a motor
vehicle accident. (A.R. 1047-48.) Meanwhile, indeed, Dr. Van Eyk had described
Flythe’s gait as slow in November and December 2013 and January 2014, Dr.
Shute recorded an antalgic gait in January 2014, and Dr. Ricketson observed his
gait to be slow in May 2014. (A.R. 452, 457, 461, 475, 738.) During his June
2014 examination of Flythe, Dr. Morris observed that his gait was very slow and
antalgic with the use of his cane. (A.R. 782.) Years later, in 2016, Dr. Van Eyk
noted that Flythe “had a slow gait and could not walk for long periods of time and
he states that this has worsened over time.” (A.R. 826, 830, 841, 1053; see also
A.R. 835 (“He states the pain . . . is now affecting his gait.”).)
Yet, the record also reflects that Flythe engaged in work activity not only
after his alleged onset date, but after he was examined by Dr. Morris. His alleged
onset date is February 28, 2011, yet nothing in the record reflects any medical
treatment from December 2010 through January 31, 2012. (See A.R. 16.)
Although Flythe was involved in a motorcycle accident in August 2013 that either
precipitated or exacerbated his health problems, in December 2013, he reported
that he was working as a mechanic. (A.R. 492.) In January 2014, he sought
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treatment after having been assaulted at work. (A.R. 429.) In June 2015, he
reported that he was performing heavy lifting and landscaping, (A.R. 873), which
at least requires heavy exertion, (A.R. 20). Also in 2015, Flythe worked as a
fence estimator. (A.R. 48-50.) All of this work contrasts sharply with Flythe’s
refusal to do anything during his physical examination with Dr. Morris without his
cane, his statements of inability to do certain maneuvers, and his refusal to do
those maneuvers.
Moreover, Flythe could not reasonably have been prejudiced by the ALJ’s
statement, as it pertains to the weight she gave to Dr. Morris’s opinion, that the
record showed that Flythe’s physical examinations were generally unremarkable
with normal gait despite his reported use of a cane and ambulatory limitations
during his examination. Sedentary work is the lowest level of exertion in the
regulations, see 20 C.F.R. §§ 404.1567(a), 416.967(a), and the ALJ determined
Flythe’s RFC to be less than a full range of sedentary work.
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are
met.
20 C.F.R. §§ 404.1567(a), 416.967(a). As just discussed, Flythe reported
engaging in work – as a mechanic, landscape laborer, fence estimator – after his
alleged onset date, all of which entailed more than sedentary work and all of which
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informed the ALJ’s RFC determination. (See, e.g., A.R. 13-14, 18, 19.) This
record of work contrasts with Flythe’s statements to Dr. Morris that he could not
heel, toe, or tandem walk or squat or kneel, (A.R. 782), and refusals to ambulate
without the use of his cane, (A.R. 781, 782). Flythe’s statements and refusals
then affected Dr. Morris’s opinions of Flythe’s severe limitations. While he found
Flythe would have severe limitations with standing and walking and lifting or
carrying, these opinions were based, in part, on Flythe’s “stated inability to heel,
toe, and tandem walk[]”. (A.R. 783 (emphasis added).) Dr. Morris was “uncertain
if an assistive device is necessary for ambulation because [Flythe] would not
attempt any ambulatory maneuvers without the use of his cane on physical
examination." (A.R. 783.) Furthermore, Flythe has not shown how according any
greater weight to the opinions that he would have severe limitations to standing,
walking, lifting, carrying would have further limited his RFC which already
restricted him to sedentary work and standing only two to three minutes every
hour. Similarly, Dr. Morris found that Flythe would have “severe postural
limitations to bending, stooping, crouching, and squatting”, but that opinion is
based solely on Flythe’s “stated inability to perform postural maneuvers on exam.”
(A.R. 783 (emphasis added).) As the Magistrate Judge found, “the ALJ did not err
in [her] evaluation and weighing of the opinion[] of” Dr. Morris. (Recommendation
at 20.)
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For the reasons explained in this Memorandum Opinion, the United States
Magistrate Judge’s Recommendation is ADOPTED. IT IS HEREBY ORDERED that
the Commissioner’s decision finding no disability is AFFIRMED, that Plaintiff’s
Motion for Judgment Reversing Decision of the Commissioner of Social Security,
[Doc. #10], is DENIED, that Defendant’s Motion for Judgment on the Pleadings,
[Doc. #12], is GRANTED, and that this action is DISMISSED WITH PREJUDICE.
This, the 3rd day of June 2019.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge
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