Henderson v. Colvin
Filing
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ORDER denying Plaintiff's 10 Motion for Summary Judgment; granting Commissioner's 13 Motion for Summary Judgment; the Commissioner's decision is AFFIRMED; and this action is DISMISSED. Signed by Senior Judge Graham Mullen on 9/30/2014. (khm)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:13CV97
DOYLE HENDERSON,
)
)
Plaintiff,
)
)
Vs.
)
)
CAROLYN W. COLVIN, Acting Commissioner of )
Social Security,
)
)
Defendant.
)
ORDER
THIS MATTER is before the court upon Plaintiff’s Motion for Judgment
on the Pleadings (Doc. No. 10) and the Commissioner’s Motion for Summary
Judgment (Doc. No. 13). Having carefully considered such motions and reviewed
the pleadings, the Court enters the following findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
I.
Administrative History
Plaintiff filed an application for a period of disability and Disability
Insurance Benefits on May 13, 2010, alleging a disability onset date of April 19,
2010. Plaintiff’s claim was denied both initially and on reconsideration; thereafter,
Plaintiff requested and was granted a hearing before an administrative law judge
(“ALJ”). After conducting a hearing, the ALJ issued a decision which was
unfavorable to Plaintiff, from which Plaintiff appealed to the Appeals Council.
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Plaintiff’s request for review was denied and the ALJ’s decision affirmed by the
Appeals Council, making the ALJ’s decision the final decision of the
Commissioner of Social Security (“Commissioner”). Thereafter, Plaintiff timely
filed this action.
II.
Factual Background
It appearing that the ALJ’s findings of fact are supported by substantial
evidence, the undersigned adopts and incorporates such findings herein as if fully
set forth. Such findings are referenced in the substantive discussion which follows.
III.
Standard of Review
The only issues on review are whether the Commissioner applied the correct
legal standards and whether the Commissioner’s decision is supported by
substantial evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Review by a federal court is not de
novo, Smith v. Schwieker, 795 F.2d 343, 345 (4th Cir. 1986); rather, inquiry is
limited to whether there was “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,” Richardson v. Perales, supra. Even if
the undersigned were to find that a preponderance of the evidence weighed against
the Commissioner’s decision, the Commissioner’s decision would have to be
affirmed if supported by substantial evidence. Hays v. Sullivan, supra
.
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IV.
Substantial Evidence
A.
Introduction
The Court has read the transcript of Plaintiff’s administrative hearing,
closely read the decision of the ALJ, and reviewed the extensive exhibits contained
in the administrative record. The issue is not whether a court might have reached a
different conclusion had he been presented with the same testimony and
evidentiary materials, but whether the decision of the ALJ is supported by
substantial evidence. The undersigned finds that it is.
B.
Sequential Evaluation
A five-step process, known as “sequential” review, is used by the
Commissioner in determining whether a Social Security claimant is disabled. The
Commissioner evaluates a disability claim under Title II pursuant to the following
five-step analysis:
(1)
Whether the claimant is engaged in substantial gainful activity;
(2)
Whether the claimant has a severe medically determinable
impairment, or a combination of impairments that is severe;
(3)
Whether the claimant’s impairment or combination of impairments
meets or medically equals one of the Listings in 20 C.F.R. Part 404, Subpart P,
Appendix 1;
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(4)
Whether the claimant has the residual functional capacity (“RFC”) to
perform the requirements of his past relevant work; and
(5)
Whether the claimant is able to do any other work, considering his
RFC, age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(i-v).
In this case, the Commissioner determined Plaintiff’s claim at the fifth step of the
sequential evaluation process.
C.
The Administrative Decision
Specifically, the ALJ first concluded that Plaintiff had not engaged in any
substantial gainful activity since April 19, 2010, the alleged onset date (Tr. 13,
Finding 2). At the second step, the ALJ concluded that Plaintiff suffered from
the following medically determinable severe impairments: L4 burst compression
fracture status post laminectomies at L3-4 and L4-5, obesity and
depression/anxiety (Tr. 13, Finding 3). At the third step, the ALJ determined that
Plaintiff did not have an impairment or a combination of impairments that met or
medically equaled any of the impairments listed in 20 C.F.R. 404, Subpart P,
Appendix 1 (Tr. 13, Finding 4).
Next, the ALJ assessed Plaintiff’s residual functional capacity (“RFC”),
and made the following finding:
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[Plaintiff] has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) and 416.967(b). He is able to lift
twenty pounds occasionally and 10 pounds frequently, stand and/or
walk for six hours each, and sit for six hours in an eight hour
workday. He would be capable of pushing/pulling with his lower
extremities on an occasional basis, and could also climb, balance,
stoop, crouch, and crawl occasionally. He is precluded from
climbing ropes and scaffolds and . . . he would have to avoid
concentrated exposures to temperature extremes, vibrations, and
hazards. He is limited to performing simple 1-2 step functions.
(Tr. 16, Finding 5). In making this finding, the ALJ considered all symptoms
and the extent to which these symptoms could reasonably be accepted as
consistent with the objective medical evidence and other evidence, based on the
requirements of 20 C.F.R. § 404.1529 and 416.929 and Social Security Rulings
(“SSR”) 96-4p and 96-7p (Tr. 16). After consideration of the evidence, the ALJ
found that Plaintiff’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but he further found that Plaintiff’s
statements regarding the severity of his symptoms and the extent of his
limitations were not entirely credible (Tr. 19).
At the fourth step, the ALJ found that Plaintiff could not perform his past
relevant work as a grader and maintenance worker. (Tr. 22, Finding 6). At the
fifth step, however, the ALJ found that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform (Tr. 23, Finding
10). Specifically, the ALJ identified representative occupations such as cashier,
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final inspector, and carder machine operator or bench assembler. (Tr. 23).
D.
Discussion
1.
Plaintiff’s Assignments of Error
Plaintiff has made the following assignments of error: (1) The ALJ did not
properly evaluate the medical opinion evidence in violation of 20 C.F.R. §
404.1527, and (2) The Commissioner erred by not considering the impact of
Plaintiff’s borderline retarded intellectual functioning and his poor reading and
writing skills on his ability to work. Plaintiff’s assignments of error will be
discussed seriatim.
2.
First Assignment of Error
Plaintiff argues that the ALJ erred by giving little weight to the medical
opinions of Dr. Rhoton, Plaintiff’s treating physician, and Ms. Larimore, a family
nurse practitioner in his office. The medical opinion of a treating source such as
Dr. Rhoton is entitled to controlling weight only if both of the following elements
are satisfied: (1) it is supported by “clinical and laboratory diagnostic techniques”
and (2) it is not inconsistent with other substantial evidence. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Where a medical opinion is not supported by
objective evidence or is inconsistent with other substantial evidence, it is not
entitled to controlling weight and, indeed, should be accorded significantly less
weight. SSR 96-2p; Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); 20 C.F.R. §
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404.1527(c)(2). Moreover, an adjudicator’s evaluation of an opinion provided by a
treating source “will generally not be disturbed absent some indication that the
ALJ has dredged up ‘specious inconsistencies’ or has not given good reason for the
weight afforded a particular [treating] opinion.” McDowell v. Astrue, No. 3:11-cv652-RJC-DSC, 2012 WL 4499336, at *3 (W.D.N.C. Aug. 2, 2012) (Mag. J. Mem
& Rec.) (citing Christian v. Apfel, No. 98-1673, 168 F.3d 481 (4th Cir. Dec. 31,
1998)), adopted, 2012 WL 4499283 (W.D.N.C. Sept. 28, 2012).
As a nurse, Ms. Larimore is not considered an “acceptable medical source”
within the meaning of the governing regulations. 20 C.F.R. §§ 404.1513(a) &
416.913(a). Pursuant to those regulations, the Agency needs evidence from
“acceptable medical sources” to establish whether a claimant is disabled. Id.
Accordingly, the regulations do not obligate an ALJ to explain the weight that he
accords to opinions from “other sources” such as Ms. Larimore. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Moreover, the Fourth Circuit has declared that the
opinion of an “other source” such as Ms. Larimore is entitled to “significantly less
weight” than the opinion of an “acceptable medical source” such as a physician or
a psychologist. Craig, 76 F.3d at 590. The Agency has, however, promulgated
guidance indicating that an ALJ must consider an opinion from an “other source”
such as Ms. Larimore and “should” either (1) explain the weight she gives to such
an opinion or (2) otherwise ensure that her discussion of the evidence allows a
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subsequent reviewer to follow her reasoning when such an opinion may have an
effect on the outcome of a case. SSR 06-3p, available at 2006 WL 2329939, at *6.
The ALJ herein accorded “little weight” to the opinions of Dr. Rhoton and
Ms. Larimore (Tr. 20-21) and the Court finds that substantial evidence supports
this decision. The ALJ correctly emphasizes that the opinions at issue “are
inconsistent with [Dr. Rhoton’s] treatment notes,” including treatment notes that
memorialize Plaintiff’s “subjective reports of pain” (Tr. 21). The ALJ was entitled
to discount these opinions on this ground. Davidson v. Astrue, 578 F.3d 838, 843
(8th Cir. 2009) (ALJ entitled to discount opinion of treating physician on ground
that it is inconsistent with physician’s own treatment notes); Schmidt v. Astrue, 496
F.3d 833, 842 (7th Cir. 2007) (ALJ properly refused to credit assessment by
treating physician because it was inconsistent with physician’s own treatment
notes); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004)
(ALJ properly discredited opinions of two treating physicians because they were
inconsistent with physicians’ own treatment notes).
Plaintiff injured his back in an accident that occurred in April 2010 (Tr.
368), then had surgery to address this injury in November 2010 (Tr. 461-66). Dr.
Rhoton provided his opinion in July 2011, and attributed all of his opined
limitations predominantly to Plaintiff’s pain (Tr. 480-82). In sharp contrast to
these opinions, and as the ALJ correctly states (Tr. 16), treatment notes from Dr.
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Rhoton’s practice – all of which postdate Plaintiff’s accident – reflect that Plaintiff
reported that his pain sometimes was only a one on a scale from zero (no pain) to
ten (excruciating pain) (Tr. 423). In addition, and as the ALJ also correctly states
(Tr. 17, 18, 20, 21), these treatment notes reflect that Plaintiff repeatedly reported
that his pain was only a two (Tr. 453, 454, 457, 458), although, as the ALJ
acknowledges, on one occasion, he reported it as a three (Tr. 447), and on another
occasion as a four (Tr. 479). Further, and as the ALJ also correctly states (Tr. 20),
these treatment notes reflect that Plaintiff consistently reported that his surgery
relieved his pain at least somewhat (Tr. 453, 457, 458, 479). Moreover, these
treatment notes also repeatedly indicate that Plaintiff was in no acute distress (Tr.
410, 412, 416, 454) and/or had no tenderness (Tr. 417, 419).
The ALJ also correctly notes that Plaintiff consistently reported that he was
not in pain as long as he took his medication (Tr. 453, 457, 479). The Fourth
Circuit has explained that, “[i]f a symptom can be reasonably controlled by
medication or treatment, it is not disabling.” Gross v. Heckler, 785 F.2d 1163,
1166 (4th Cir. 1986); see 20 C.F.R.§§ 404.1529(c)(3)(v); 416.929(c)(3)(v).
Moreover, the ALJ accounted for any limitations arising from Plaintiff’s
medication by finding that Plaintiff was restricted to performing “simple 1-2 step
functions” (Tr. 16, 21). Although Plaintiff did allege that increased activity caused
an unspecified increase in the level of his pain (Tr. 454), nothing in the record
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suggests that the activities associated with the jobs that the ALJ found Plaintiff
capable of performing would cause him to suffer a disabling level of pain. To the
contrary, and as the ALJ correctly emphasizes, Plaintiff reported that his
medications “keep him active” (Tr. 18, 20, 21, referring to Tr. 477), that he was
capable of performing a “wide array” of activities of daily living (Tr. 19; see also
Tr. 15, 20, 21), and that he wanted to return to work (Tr. 18, referring to Tr. 455,
477).
The ALJ also explained that he gave little weight to the opinions of Dr.
Rhoton and Ms. Larimore because they were inconsistent with Plaintiff’s activities
of daily living. (Tr. 21). The regulations allow this type of evidence to be
considered in assessing Plaintiff’s RFC. See 20 CFR §§ 404.1529(c)(3),
416.929(c)(3), 404.1529(c)(3)(i), 416.929(c)(3)(i) (claimant’s “daily activities” and
“pattern of daily living” are “important indicator[s] of the intensity and persistence
of [her] symptoms”); SSR 96-7p, available at 1996 WL 374186, at *3, *5 & *7
(“daily activities” are material to assessment of RFC); see Gross, 785 F.2d at 1166
(“the pattern of [claimant’s] daily activity suggests that he was not disabled from
working”).
In the instant case, the ALJ correctly recites (Tr. 15, 19, 20, 21) that Plaintiff
was able to go walking (Tr. 56, 448); work in his shop making birdhouses for two
and a half hours at a time (Tr. 41, 43); feed, walk, and otherwise care for several
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animals, including walking his dogs (Tr. 55-56, 448); gather eggs (Tr. 56); attend
church twice a month (Tr. 55); shop (Tr. 51); care for his personal needs (Tr. 48,
447); do household chores, including blowing leaves, doing a little cooking and
laundry, washing a few dishes, and taking out the trash (Tr. 47, 53-54); and go out
to eat (Tr. 55). Contrary to Plaintiff’s position, the Fourth Circuit has held that an
ALJ is entitled to find that a claimant is not disabled if he is able to engage in the
kinds of activities that Plaintiff in the instant case performed. See Johnson v.
Barnhart, 434 F.3d 650, 658 (4th Cir. 2005) (upholding finding that claimant’s
routine activities – including attending church, cooking, feeding pets, cleaning the
house, and washing clothes – were inconsistent with complainant’s alleged
inability to work); Gross, 785 F.2d at 1166 (“the pattern of [claimant’s] daily
activity” – including shopping, cooking, washing dishes, generally taking care of a
house, walking to town, and taking care of personal needs – “suggests that he was
not disabled from working”).
Accordingly, the Court finds that the ALJ properly evaluated the opinion
evidence of Dr. Rhoton and Ms. Larimore and no error occurred.
3.
Second Assignment of Error
Plaintiff next argues that the ALJ failed to properly consider Plaintiff’s
mental limitations. An ALJ is solely responsible for assessing a claimant’s RFC.
20 C.F.R. §§ 404.1546(c), 416.946(c). In making that assessment, he or she must
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consider the functional limitations resulting from the claimant’s medically
determinable impairments. SSR 96-8p, available at 1996 WL 374184, at *2. It is
the claimant’s burden, however, to establish his RFC by demonstrating how his
impairment impacts his functioning. See 20 C.F.R. §§ 404.1512(c), 416.912(c);
see also, e.g., Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“[t]he burden
of persuasion . . . to demonstrate RFC remains on the claimant, even when the
burden of production shifts to the Commissioner at step five”); Plummer v. Astrue,
No. 5:11-cv- 00006, 2011 WL 7938431, at *5 (W.D.N.C. Sept. 26, 2011) (Maj. J.
Mem. & Rec.) (“[t]he claimant bears the burden of providing evidence establishing
the degree to which her impairments limit her RFC”) (citing Stormo), adopted,
2012 WL 1858844 (May 22, 2102), aff’d, 487 F. App’x 795 (4th Cir. Nov. 6,
2012).
Plaintiff argues that the ALJ did not consider that he did not make it past
middle school and was able to read and write only a little. However, the ALJ
specifically cited these facts in his Decision (Tr. 18). Moreover, the ALJ’s
assessment of Plaintiff’s RFC gives “significant weight” to the opinion that Dr.
Conroy provided concerning the limitations arising from Plaintiff’s mental
impairments (Tr. 22, referring to Tr. 447-49). Dr. Conroy examined Plaintiff and
opined that he “could probably understand, retain, and follow instructions related
to tasks involving manual labor” (Tr. 449). State agency psychologist Daniel
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Nelson, Psy.D., specifically addressed this opinion (Tr. 103), and opined that
Plaintiff was “able to understand simple instructions,” despite his limitations in
understanding, concentration, memory, and persistence (Tr. 112). The ALJ
properly accounted for these restrictions by finding that Plaintiff retained the RFC
to perform “simple 1-2 step functions” (Tr. 16).
In addition, one of Plaintiff’s medical providers performed a mental status
assessment in December 2010 and reported that Plaintiff was “able to focus and
shift attention” and that he “comprehends and recalls task directions
independently” (Tr. 470). As the ALJ correctly emphasizes (Tr. 22), this report
supports the ALJ’s finding that Plaintiff could perform “simple 1-2 step functions”
(Tr. 16).
Plaintiff also emphasizes his testimony that his math skills were limited (Pl’s
Mem. 13, referring to Tr. 35). Dr. Conroy’s report memorializes the facts that
Plaintiff was unable to correctly answer a simple multiplication question and that,
although he was able to correctly answer a series of simple subtraction questions,
he did so “very slowly” (Tr. 449). As stated previously, Dr. Nelson specifically
addressed Dr. Conroy’s report, then opined that Plaintiff was able to understand
simple instructions (Tr. 112). As also stated previously, the ALJ properly
accounted for this restriction by including it in his RFC finding (Tr. 16).
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E.
Conclusion
The undersigned has carefully reviewed the decision of the ALJ, the
transcript of proceedings, Plaintiff’s motion and brief, the Commissioner’s
responsive pleading, and Plaintiff’s assignments of error. Review of the entire
record reveals that the decision of the ALJ is supported by substantial evidence.
See Richardson v. Perales, supra; Hays v. Sullivan, supra. Finding that there was
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, supra, Plaintiff’s Motion for Judgment on the
Pleadings will be denied, the Commissioner’s Motion for Summary Judgment will
be granted, and the decision of the Commissioner will be affirmed.
ORDER
IT IS, THEREFORE, ORDERED that
(1)
the decision of the Commissioner, denying the relief sought by
Plaintiff, is AFFIRMED;
(2)
the Plaintiff’s Motion for Judgment on the Pleadings (Doc. No. 10) is
DENIED;
(3)
the Commissioner’s Motion for Summary Judgment (Doc. No. 13) is
GRANTED; and
(4)
this action is DISMISSED.
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Signed: September 30, 2014
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