Stoots v. Astrue
Filing
16
OPINION AND ORDER - the Court hereby (1) REJECTS the Magistrate's Reportand Recommendation, ECF No. 15; (2) DENIES the Plaintiff's Motion for Summary Judgment, ECF No. 10; (3) GRANTS the Defendant's Motion for Summary Judgment, ECF No. 12; and (4) AFFIRMS the Commissioner's decision. Signed by District Judge Robert G. Doumar on 9/29/12 and filed on 10/1/12. (jcow, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINL k
NORFOLK DIVISION
CLERK. U.S. DISTRICT COURT
NOR-OI K VA
RICHARD STOOTS
Plaintiff
v.
Civil No. 2:llcvl5
MICHAEL J. ASTRUE,
Commissioner of Social
Security
OPINION AND ORDER
This matter comes before the Court on Richard Stoot's ("Plaintiff) action under Section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final
decision of the Commissioner of the Social Security Administration ("Commissioner") denying
his claim for disability insurance benefits under the Social Security Act. For the reasons stated
herein, the Court hereby: (1) REJECTS the Magistrate's Report and Recommendation;
(2) DENIES the Plaintiffs Motion for Summary Judgment, ECF No. 10; (3) GRANTS the
Defendant's Motion for Summary Judgment, ECF No. 12; and (4) AFFIRMS the
Commissioner's decision.
I.
PROCEDURAL BACKGROUND
On July 16, 2008, Plaintiff filed an application for disability insurance benefits. The
application alleged an onset of disability as of June 27 2008 due to a history of nonischemic
cardiomyopathy, degenerative disc disease, and status post laminectomy. R.1 11,129. Plaintiffs
application was denied by the Social Security Administration initially on October 8, 2008, R. 4762, and on reconsideration on June 5,2009, R. 63-76.
Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") of the Social
Security Administration, which was held on March 2, 2010.
R. 20-46, 93. Plaintiff was
represented by his attorney, Barry Richardson, at the hearing. R. 20-46, 84. The Plaintiff, his
wife, and Vocational Expert ("VE") Robert Edwards testified at the hearing. R. 20-46.
On March 12, 2010, the ALJ issued a decision. R. 9-16. The ALJ found that Plaintiff
was not entitled to disability insurance benefits because he was not under a disability as defined
in the Social Security Act. R. 9, 16. Specifically, the ALJ found Plaintiff capable of making an
adjustment to a limited range of sedentary work that exists in significant numbers in the local and
national economies. R. 13-16. On May 3,2010, Plaintiffrequested review of the ALJ's decision
by the Appeals Council of the Office of Hearings and Administration ("Appeals Council").
R. 94-96. The Appeals Council denied review on November 5, 2010. R. 1-5. This makes the
ALJ's decision the "final decision" of the Commissioner subject to judicial review pursuant to
42 U.S.C. § 405(g). 20 C.F.R. § 404.981.
Plaintiff brought this action seeking judicial review of the decision of the Commissioner
denying his claim for disability insurance benefits. Plaintiff filed a complaint on January 13,
2011, which Defendant answered on June 30, 2011. ECF Nos. 3, 6. The action was referred to
United States Magistrate Judge F. Bradford Stillman, pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B), by order of reference filed July 1, 2011. Plaintiff filed a motion for summary
judgment with memorandum in support on August 5, 2011. ECF Nos. 10-11. Defendant filed a
1"R." refers to the certified administrative record of proceedings relating to this case, ECF No. 7, filed
under seal pursuant to Local Civil Rule 7(C)(1).
2
motion for summary judgment with memorandum in support on September 8, 2011. ECF Nos.
12-13. Plaintiff filed a reply to the Defendant's motion for summary judgment on September 22,
2011. ECF No. 14. Magistrate Judge Stillman filed his Report and Recommendations on June
22, 2012. ECF No. 15. The Magistrate recommends that: (1) Plaintiffs Motion for Summary
Judgment be granted, to the extent it seeks reversal and remand of the Commissioner's decision;
(2) Defendant's Motion for Summary Judgment be denied; and (3) the Commissioner's decision
be vacated and the case remanded for further proceedings. Mag. J. Rep. and Recs. 19, ECF
No. 15. No objections to the Report and Recommendations were filed in this case.
II.
FACTUAL BACKGROUND
At the time of his alleged disability onset date, Plaintiff was forty-one years old; he is
presently forty-four years old. R. 15, 22, 97. The Plaintiff has a high school education. R. 15.
His past relevant work includes employment as an auto mechanic, a retail department manager,
and a truck driver. R. 15, 23-27. According to VE testimony, each of these occupations is
classified as light to medium and semi-skilled to skilled work.2 R. 15,42-43.
OnJune 27, 2008, Plaintiff ceased working due to his alleged disability. R. 9, 27, 97.
2Under the Social Security Act, all occupations are classified as "unskilled," "semi-skilled," or "skilled"
work. See 20 C.F.R. §404.1568. Unskilled work requires "little or no judgment to do simple duties that can be
learned on the job in a short period oftime." 20 C.F.R. §404.1568(a). Semi-skilled work requires
some skills but does not require doing the more complex work duties. Semi-skilled
jobs may require alertness and close attention to watching machine processes; or
inspecting, testing or otherwise looking for irregularities; or tending or guarding
equipment, property, materials, or persons against loss, damage or injury; or other
types of activities which are similarly less complex than skilled work, but more
complex than unskilled work. A job may be classified as semi-skilled where
coordination and dexterity are necessary ....
20 C.F.R. § 404.1568(b). Skilled work requires the use of judgment in "dealing with people, facts, or figures or
abstract ideas at a high level of complexity." 20 C.F.R. § 404.1568(c).
III.
STANDARD OF REVIEW
Pursuant to the Federal Rules of Civil Procedure, the Court reviews de novo any part of a
Magistrate Judge's recommendation to which a party has properly objected. Fed. R. Civ. P.
72(b)(3). The Court may then "accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions." Id.
"Determination of eligibility for social security benefits involves a five-step inquiry."
Walls v. Barnhart. 296 F.3d 287, 290 (4th Cir. 2002); see also Johnson v. Barnhart. 434 F.3d
650, 653 n.l (4th Cir. 2005) (per curiam). "The claimant has the burden of production and proof
in Steps l^L At Step 5, however, the burden shifts to the Commissioner to produce evidence
that other jobs exist in the national economy that the claimant can perform considering h[er] age,
education, and work experience." Hancock v. Astrue. 667 F.3d 470, 472 (4th Cir. 2012) (citing
Hunter v. Sullivan. 993 F.2d 31, 35 (4th Cir. 1992) (per curiam)) (internal citation omitted)
(internal quotation omitted). If a determination of disability can be made at any step, the
Commissioner need not analyze subsequent steps. ]± (citing 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4)).
First, the claimant must demonstrate that she is not engaged in substantial gainful activity
at the time ofapplication. 20 C.F.R. § 404.1520(b). Second, the claimant must prove that he has
"a severe impairment... which significantly limits ... [his] physical or mental ability to do
basic work activities." 14 § 404.1520(c). Third, if the claimant's impairment matches or equals
an impairment listed in appendix one of the Act, and the impairment lasts—or is expected to
lasl—for at least twelve months, then the claimant is disabled. Id. § 404.1520(d); see 20 C.F.R.
pt. 404 subpart P app. 1(listing impairments). If, however, the impairment does not meet one of
those listed, then the ALJ must determine the claimant's residual functional capacity ("RFC").
The RFC is determined based on all medical or other evidence in the record of the claimant's
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case. Id. § 404.1520(e). Fourth, the claimant's RFC is compared with the "physical and mental
demands of [the claimant's] past relevant work." ]d. § 404.1520(f). If it is determined that the
claimant cannot meet the demands of past relevant work then, fifth, the claimant's RFC and
vocational factors are considered to determine if he can make an adjustment to other work. If the
claimant cannot make such an adjustment, then he is disabled for purposes of the Act. Id. §
404.1520(g)(1).
The Court's review of this five-step inquiry is limited to determining whether: (1) the
decision was supported by substantial evidence on the record; and (2) the proper legal standard
was applied in evaluating the evidence. 42 U.S.C. § 405(g); Johnson. 434 F.3d at 653. "If the
Commissioner's decision is not supported by substantial evidence in the record, or if the ALJ has
made an error of law, the Court must reverse the decision." Coffman v. Bowen. 829 F.2d 514,
517 (4th Cir. 1987). In deciding whether to uphold the Commissioner's final decision, the Court
considers the entire record, "including any new evidence that the Appeals Council 'specifically
incorporated ... into the administrative record.'" Mever v. Astrue. 662 F.3d 700, 704 (4th Cir.
2011) (quoting Wilkins v. Sec'v. Dent, of Health & Human Servs.. 953 F.2d 93, 96 (4th Cir.
1991)).
"Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Johnson. 434 F.3d at 650 (quoting Craie v. Chater. 76 F.3d
585, 589 (4th Cir. 1996)). Substantial evidence "consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance." Hays v. Sullivan. 907 F.2d 1453,
1456 (4th Cir. 1990) (quoting Laws v. Celebrezze. 368 F.2d 640, 642 (4th Cir. 1966)). In
performing its review, the Court does not "undertake to reweigh conflicting evidence, make
credibility determinations, or substitute our judgment for that of the" ALJ. "Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the [ALJ]." Id. (quoting Craig. 76 F.3d at 589).
However, before a Court can determine whether substantial evidence supports the
Commissioner's decision it must first ascertain whether the ALJ has considered all relevant
evidence and sufficiently explained the weight given to obviously probative exhibits. Gordon v.
Schweiker. 725 F.2d 231, 236 (4th Cir. 1984) (quoting Arnold v. Sec'v of Health. Ed. & Welfare.
567 F.2d 258, 259 (4th Cir. 1977)). "Judicial review of an administrative decision is impossible
without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler.
715 F.2d 148, 150 (4th Cir. 1983). Thus, judicial review may prove impossible, and remand
necessary, where: (1) the ALJ "fail[s] to make requisite findings or to articulate the bases for his
conclusions," jd.; and (2) the record provides an inadequate explanation of the Commissioner's
decision, Meyer. 662 F.3d at 707 (citing DeLoatche. 715 F.2d at 150) (explaining that judicial
review is possible so long as the record provides an adequate explanation of the Commissioner's
decision). Moreover, if new and material evidence is made a part of the record, but review of the
ALJ's decision is summarily denied by the Appeals Council, remand is appropriate because
"[assessing the probative value of competing evidence is quintessentially the role of the fact
finder." Meyer, 662 F.3d at 707.
IV.
ANALYSIS
A.
The ALJ's Five-Step Analysis of Plaintiff Stoot's Disability Claim.
With respect to steps one to three in the five-step analysis set forth at 20 C.F.R. §
404.1520, the ALJ found in his March 12, 2010 opinion that: (1) the Plaintiff is not engaged in
substantial gainful activity, R. 11; (2) the Plaintiff suffers from a number of impairments, namely
a history of nonischemic cardiomyopathy, degenerative disc disease, and status post
laminectomy, which limit his ability to perform basic work activities, R. 11-12; and (3) the
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Plaintiff does not have an impairment, or combination of impairments, that meets or medically
equals one of the impairments in 20 C.F.R., Part 404, Subpart B, Appendix 1, R. 12. Thus, in
accordance with 20 C.F.R. § 404.1520(a)(4), the ALJ was required to assess the Plaintiffs RFC.
The ALJ's opinion found that Plaintiff Stoots "has the residual functional capacity to
perform sedentary work as defined by 20 CFR 404.1567(a) that allows... [the Plaintiff] to
alternate between sitting and standing at will
[and] require[s] no climbing, only occasional
bending and squatting, no work overhead, and only simple, repetitive, one to three step tasks."
R. 13. The ALJ principally relied upon five types of evidence in assessing the Plaintiffs RFC:
(1) records of clinical and diagnostic testing, R. 13-14; (2) Plaintiffs testimony concerning his
ailments and daily activities, R. 14; (3) medical opinion evidence of treating physician Dr. Beth
Winke, which the ALJ afforded "significant weight," R. 14; (4) medical opinion evidence of
State agency medical consultants, which were given "moderate weight," R. 14; and (5) testimony
of the Plaintiffs wife, which was given "moderate weight," R. 14.
Based on this RFC, the ALJ concluded at step four that Plaintiff is unable to perform any
past relevant work. R. 15. The burden then shifted, at step five, to the Commissioner to produce
evidence that other jobs exist in the national economy that Plaintiff Wilson can perform
considering his age, education, and work experience. Hancock, 667 F.3d at 472 (citing Hunter.
993 F.2d at 35). Based on the testimony of the VE who testified at the March 2, 2010 hearing,
the ALJ concluded such jobs exist. Thus, the ALJ ruled that Plaintiff is "not disabled." R. 1516.
B.
The ALJ Provided, Pursuant to 20 C.F.R. § 404.1527, An Inadequate
Explanation for the Weight Afforded to Medical Opinion Evidence of the
Plaintiffs Treating Physician, Dr. Beth Winke.
In making the RFC determination, the ALJ afforded "significant weight" to the opinion
of Dr. Winke, the Plaintiffs treating physician. R. 14. He did so because her opinion evidence
"is consistent with the claimant's treatment history and his activities of daily living." R. 14.
Alternatively, the ALJ afforded only "moderate weight" to the State agency medical consultants'
opinions. R. 14. He did so because "the medical evidence of record supports a somewhat more
restrictive residual functional capacity finding." R. 14.
Plaintiff argues in his Motion for Summary Judgment that the ALJ erred in failing to
credit the totality of Dr. Winke's medical opinion.
Specifically, Plaintiff argues that an
Assessment of Ability to Do Work-Related Activities (Physical) ("Assessment") completed by
Dr. Winke on November 13, 2008 evidences that Plaintiff is unable to perform any full-time
work. Def.'s Mot. for Summ. J. 3-8, ECF No. 11. On that form, Dr. Winke suggests a litany of
work-related restrictions, including:
1. Carrying 10 lbs: 1/3 of an 8-hour day;
2.
3.
4.
5.
Carrying 5 lbs: 1/3 to 2/3 of an 8-hour day;
Standing or Walking: 2 hours of an 8-hour day, 30 minutes without interruption;
Sitting: 4 Hours of an 8-hour day, 1 hour without interruption;
Climbing. Balancing, or Crawling: Never;
6. Stooping. Kneeling, or Crouching: Occasionally, meaning up to 1/3 of an 8-hour day;
and
7.
Pushing and Pulling: No more than 10 lbs.
R.253-54.
This Circuit follows the "treating physician rule," which generally requires that the
medical opinion evidence of a treating physician be given greater weight. This rule is not,
however, absolute. Mastro v. Apfel. 270 F.3d 171, 178 (4th Cir. 2001) (citing Hunter, 993 F.2d
at 35). According to the regulations, a treating physician's medical opinion evidence is entitled
to controlling weight if it "is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in ... [the] case
record." 20 C.F.R. § 416.927. Therefore, "[b]y negative implication, if a physician's opinion is
not supported by clinical evidence or if it is inconsistent with other substantial evidence, it
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should be accorded significantly less weight." Mastro. 270 F.3d at 178 (quoting Craig. 76 F.3d
at 590). Ultimately, "the ALJ holds the discretion to give less weight to the testimony of a
treating physician in the face of persuasive contrary evidence." Id. Ultimately, "the ALJ holds
the discretion to give less weight to the testimony of a treating physician in the face of persuasive
contrary evidence." Id
However, pursuant to 20 C.F.R. § 404.1527(c), unless a treating source's opinion is given
controlling weight, an ALJ is required to consider the factors set forth at §§ 404.1527(c)(l)-(6) in
deciding the weight to give any medical opinion. This includes: (1) whether the source of the
opinion has examined the plaintiff; (2) whether the source of the opinion has a treatment
relationship with the plaintiff, and the nature, extent, and length of the treatment relationship;
(3) whether the opinion is supported by relevant evidence; (4) whether the opinion is consistent
with the record as a whole; (5) whether the source of the opinion is a specialist; and, (6) any
other factors that support or contradict the opinion (including "the amount of understanding of
our disability programs and their evidentiary requirements that an acceptable medical source
has"). 20 C.F.R. §§ 404.1527(c)(l)-(6).
Therefore, upon determining that Dr. Winke's opinion would not be afforded controlling
weight, the ALJ was required to explain his decision to afford Dr. Winke's medical opinion
evidence "significant weight," R. 14, by reference to these factors. The ALJ fails in this respect,
merely claiming that Dr. Winke's opinion "is consistent with the claimant's treatment history
and his activities of daily living." R. 14. As the Magistrate correctly noted, the ALJ "does not
explain why he rejected the specific limitations that the plaintiff cannot work a full eight-hour
workday and that the plaintiff could beexpected to miss more than two days of work per month."
Rep. and Recs. of Mag. Judge 16, ECF No. 16.
C.
Remand Is Unnecessary Because There Is Sufficient Evidence in the
Record
for
the
Court
to
Find
That
the
Commissioner's
Final
Determination Is Supported By Substantial Evidence.
The Magistrate's Report and Recommendations states that "[t]he only evidence in the
record that contradicts Dr. Winke's opinions with respect to" limitations concerning the
Plaintiffs ability to stand, walk, sit, or be regularly present at work are the medical opinions of
the State agency medical consultants, Dr. Michael Cole and Dr. Robert Castle. Rep. and Recs. of
Mag. J. 19, ECF No. 16; see R. 47-62 (disability determination at the initial level incorporating
the medical opinion of Dr. Michael Cole); R. 63-76 (disability determination at the
reconsideration level incorporating the medical opinion of Dr. Robert Castle). The Magistrate
felt that "the opinions of two non-examining state physicians cannot be considered substantial
evidence justifying the dilution of the opinions of the plaintiffs treating physician," and
therefore recommended that the Court remand the case for further proceeding. Rep. and Recs. of
Mag. J., ECF No. 16.
An ALJ is not, however, required to credit a treating physician's opinion in its entirety.
Cain v. Barnhart. 197 Fed. Appx. 531, 533-34 (6th Cir. 2006) (unpublished opinion) (affirming
ALJ's decision to partially discount treating physician's opinion based on inadequate
explanation, lack of objective data supporting assessment, inconsistent medical opinion
evidence, and inconsistency with the plaintiffs own testimony concerning his daily activities);
Bennett v. Barnhart. 264 F. Supp. 2d. 238, 257-60 (W.D. Pa. 2003) (affirming ALJ's decision
not to incorporate certain medical limitations set forth on physical abilities form by treating
physician due to contradictory evidence in the record). Moreover, this Circuit has held that
judicial review is only rendered impossible if the record provides an inadequate explanation of
the Commissioner's decision. Mever. 662 F.3d at 707 (citing DeLoatche. 715 F.2d at 150).
After reviewing the record in its entirety, the Court has found sufficient evidence to
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conclude that the ALJ's RFC determination, which does not incorporate certain limitations set
forth by Dr. Winke on the November 13, 2008 Assessment form, R. 253-55, is supported by
substantial evidence. The Court reaches this conclusion based on: (1) inadequate explanation for
these physical limitations in Dr. Winke's treatment notes; and (2) inconsistencies amongst the
physical restrictions set forth on the Assessment form.
1.
There Is Inadequate Explanation for Dr. Winke's Sudden
Imposition of the Exertional Limitations Set Forth in the
November 13,2008 Assessment Form.
Dr. Winke's comments on the Assessment form and her treatment notes fail to adequately
explain why she suddenly imposed exertional limitations on the Plaintiffs capacity to work on
November 13, 2008. The Assessment form itself advises the physician that "YOU MUST [Dr.
Winke]... [i]dentify the particular medical findings (i.e., physical exam findings, x-ray findings,
lab test results, history, symptoms (including pain), etc.) which support your assessment of any
limitation." R. 253. With respect to the restrictions imposed on standing or walking, Dr. Winke
merely wrote "weakness, pain." R. 253. As for her restrictions on Plaintiffs ability to sit, she
wrote "radiculopathy." R. 254. Finally, Dr. Winke limited the Plaintiffs ability to lift or carry
objects to: (1) 10 lbs for up to 1/3 of an 8-hour day; and (2) 5 lbs for up to 2/3 of an 8-hour day.
She justified those restrictions based on atrophy and weakness in the left lower extremity. R.
253.
Dr. Winke began treating the Plaintiff on January 16, 2007. R. 250. From that date to
November 13, 2008, when the Assessment form was completed, Dr. Winke examined the
Plaintiff on twenty occasions. R. 231-50. Her treatment notes from the very first examination
state that Plaintiff Wilson was suffering from "chronic low back pain." R. 250. As early as
April 5, 2007, under "PHYSICAL EXAMNIATION," Dr. Winke states that "the patient is noted
to have significant atrophy of the left lower leg as compared to the right." That same day, under
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"IMPRESSION," Dr. Winke first references "left lower extremity radiculopathy" as a symptom.
R. 247. Dr. Winke never references "weakness" in her treatment notes, though on January 7,
2008, she did acknowledge that Plaintiff Stoots has "intact strength." R. 238.
Therefore, the only three symptoms referenced on the Assessment form supported by Dr.
Winke's treatment notes—pain, atrophy, and radiculopathy—had developed as early as April 5,
2007. From April 2007 to June 2008, however, the Plaintiff was gainfully employed as a
General Services Technician at an Automotive Repair Shop. R. 142. In that position the
Plaintiff states that he would walk and stand 8-9 hours per day, sometimes lift 50 lbs, and
frequently (up to 2/3 of the workday) lift 35-40 lbs. R. 143. This work, which the Plaintiff
performed with all of the symptoms referenced in the Assessment form, far exceeds the
exertional requirements that Dr. Winke suddenly set forth in November 2008.
Dr. Winke's plan of treatment for the Plaintiff also seems inconsistent with her sudden
recommendation of these exertional limitations. From January 16, 2007 to November 13, 2008,
Dr. Winke's plan of treatment consists almost exclusively of: (1) Methadone and Vicodin HP;
and (2) a monthly follow-up appointment. R. 231-50. There are rare exceptions, but none of
them suggest a sudden change in the Plaintiffs condition. See R. 232 (suggesting compression
socks); R. 236 ("We will add a Medrol Dose Pak at this time."); R. 243 ("I would like the patient
to start Lyrica at 50 mg
At some point, we may want to check some blood work."); R. 245
(I [Dr. Winke] again suggested an appointment with Dr. Gross."); R. 247 ("I [Dr. Winke] have
encouraged the patient to make an appointment to see Dr. Gross for surgical consideration.").
After carefully reviewing Dr. Winke's treatment notes, the Court finds that there were no
new symptoms, tests, or findings that would explain the sudden need to restrict the Plaintiffs
work activities in November 2008. The ALJ did not, therefore, err in discounting those portions
12
of Dr. Winke's medical opinion set forth on the November 13, 2008 Assessment form.
2.
There Are Inconsistencies Amongst the Exertional Limits Set
Forth on the Assessment Form by Dr. Winke.
As discussed in Part IV(C)(1), the Assessment form completed by Dr. Winke on
November 13, 2008 outlines exertional limits on, amongst other things, the Plaintiffs ability to:
(1) stand or walk; (2) sit; and (3) lift or carry objects. R. 253-55. Dr. Winke suggests that
Plaintiff Stoots is only able to stand or walk for 2 hours of an 8-hour day, and only in 30 minute
increments. R. 253. However, Dr. Winke also suggests that the Plaintiff is capable of lifting
and/or carrying objects up to 5 lbs for 2/3 of an 8-hour day, which is approximately 5 hours and
20 minutes. R. 253.
The word "carry" has many meanings, but is most appropriately defined in this context as
"to move while supporting."
See Merriam-Webster Dictionary. Carry (Sept. 26, 2012),
http://www.merriam-webster.com/dictionary/carry (defining "carry" as, amongst other things,
"to move while supporting"); see also Wright v. Astrue. 2008 WL 5070760 at *9 n.7 (D. NJ.
2008) (unpublished opinion) (finding the same). Having stated that the Plaintiff is able to
"carry" a 5 lb object for 5 hours and 20 minutes of an 8-hour work day, Dr. Winke necessarily
implied that the Plaintiff is able to walk for a similar amount of time. Not only is that
inconsistent with her own estimate of the Plaintiffs capacity to stand or walk set forth on the
Assessment form, R. 253, but also exceeds the 4-hour stand and/or walk limit incorporated into
the medical opinion evidence of Dr. Michael Cole, a State agency medical consultant. R. 56.
It was the ALJ's responsibility to weigh conflicting evidence and make credibility
determinations when determining the Plaintiffs RFC. Hays. 907 F.2d at 1456. Faced with
inconsistencies amongst Dr. Winke's own recommendations, R. 253-55, as well as a conflict
with the opinions of the State agency medical consultant, R. 56, the Court finds that reasonable
13
minds could differ as to whether to credit all or only a portion of Dr. Winke's medical opinion
evidence. Id. (quoting Craig, 76 F.3d at 589) ("Where conflicting evidence allows reasonable
minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on
the [ALJ].").
V.
CONCLUSION
Pursuant to 20 C.F.R. § 416.927, "if 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." Mastro. 270 F.3d at 178 (quoting Craig. 76 F.3d at 590). Similarly,
an ALJ may refuse to credit some, but not all, of a physician's opinion if those discredited
portions suffer from these deficiencies. The Court finds that the ALJ acted appropriately in
affording Dr. Winke's medical opinion evidence "significant weight" while simultaneously
discounting portions of her opinion, principally those set forth on the Assessment form, because
those discounted portions were not supported by clinical evidence, suffer from internal
inconsistencies, and are inconsistent with other substantial evidence in the record.
For the reasons stated herein, the Court hereby (1) REJECTS the Magistrate's Report
and Recommendation, ECF No. 15; (2) DENIES the Plaintiffs Motion for Summary Judgment,
ECF No. 10; (3) GRANTS the Defendant's Motion for Summary Judgment, ECF No. 12; and
(4) AFFIRMS the Commissioner's decision. The Clerk is DIRECTED to deliver a copy of this
Order to all Counsel of Record in this case.
Robert G. Doum
IT IS SO ORDERED.
Senior United Sta
UNITED STATES DISTRICT JUDGE
Norfolk, VA'r'V"^
September £l, 2012
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