Harmon v. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER ACCEPTING and ADOPTING the findings of the U.S. Magistrate Judge's 13 Report and Recommendation filed May 6, 2014. GRANTING Defendant's 11 Motion for Summary Judgment; DENYING Plaintiff's 8 Motion fo r Summary Judgment; DENYING Plaintiff's 9 Motion for Remand. Accordingly, Defendant's decision to deny supplemental security income is AFFIRMED. Judgment is hereby entered in favor of the Commissioner, as outlined. (See Order for Specifics) Entered 6/17/14 and filed 6/18/14. (Signed by District Judge Raymond A. Jackson on 6/17/14). (ecav, )

IN THE UNITED STATES DISTRICT COURT
FORTHE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

ELIZABETH PHILLIPS HARMON,
Plaintiff,

CIVIL ACTION NO. 2:13cv269
CAROLYN W. COLVIN,

Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINIONAND ORDER

This matter is currently before the Court on Plaintiff Elizabeth Phillips Harmon's

objections to the Magistrate Judge's Report and Recommendation. For the reasons set forth
below, the Magistrate Judge's Report and Recommendation (ECF No. 13) is ADOPTED,
Defendant's Motion for Summary Judgment (ECF No. 11) is GRANTED, Plaintiffs Motion for

Summary Judgment (ECF No. 8) is DENIED, Plaintiffs Motion for Remand (ECF No. 9) is
DENIED, and the decision ofDefendant, the Commissioner ofthe Social Security

Administration, to deny Social Security Act disability insurance benefits is AFFIRMED.
I. FACTUAL AND PROCEDURAL HISTORY

In 2010, Elizabeth Phillips Harmon ("Plaintiff) filed an application for disability

insurance benefits ("DIB"). Certified Administrative Record 24 (hereafter abbreviated as "R.").

In her application, Plaintiff requested benefits from May 25, 1998, her alleged onset of disability,

through December 31,1999, the date last insured (hereafter referred to as "the relevant period").
R. 26. Plaintiff alleges that on May 25, 1998, she fell on a concrete boat ramp and injured her

right knee, resulting in two surgeries and the use of crutches for one year. R. 56-58. Plaintiff

also alleges she had been disabled as aresult of chronic obstructive pulmonary disease

("COPD"), attention deficit disorder, hand numbness, and severe neck, shoulder, arm and wrist
pain. R. 122-24, 145 167-172. The Commissioner ofthe Social Security Administration
("Commissioner" or "Defendant") initially denied Plaintiffs DIB application on June 9, 2010,
and upon reconsideration, denied her application again on September 24,2010. R. 69-82.
Plaintiffrequested ahearing before an Administrative Law Judge ("ALJ"), which took place on
August 16, 2011. R. 51-68. On September 19, 2011, the ALJ issued adecision denying
Plaintiffs claim for DIB, finding that Plaintiff was not under disability during the relevant

period. Specifically, the ALJ found that while Plaintiffs right knee impairments were severe, all
other impairments were not severe during the relevant period, and Plaintiff maintained the
residual functional capacity ("RFC") to perform less than a full range oflight work in a

significant number of existing jobs. R. 24-34. On March 12, 2013, the Appeals Council denied
a request to review the ALJ's decision. R. 5-9.

On May 13,2013, Plaintiff filed acomplaint seeking this Court's review of the denial of

DIB by the Commissioner. The parties filed cross-motions for summary judgment and Plaintiff
filed an alternative motion to remand. On August 23,2013, United States Magistrate Judge

Tommy E. Miller ("Magistrate Judge") filed his Report and Recommendation ("R&R"), in
which he recommends that the decision ofthe Commissioner be affirmed.1 Plaintiff has filed

objections to the R&R, which Defendant opposes. This matter is now ripe for disposition by the
Court.

1 Under 28 U.S.C. §636(b)(1)(B), "a judge may also designate a Magistrate Judge to conduct hearings, including
evidentiary hearings, and to submit to ajudge ofthe court proposed findings offact and recommendations for the
disposition ...."

II. LEGAL STANDARD

When considering a party's objections to the findings and recommendations ofthe

Magistrate Judge, adistrict judge "must determine de novo any part ofthe Magistrate Judge's
disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also Wimmer v.
Cook, 774 F.2d 68, 73 (4th Cir. 1985) ("[A]ny individual findings offact or recommendations
for disposition by [the Magistrate Judge], ifobjected to, are subject to final de novo
determination...by a district judge...."). Under de novo review, the Magistrate Judge's R&R

carries no presumptive weight, and the district court may accept, reject or modify the report, in
whole or in part, and may recommit the matter to the Magistrate Judge with instructions.

Halloway v. Bashara, 176 F.R.D. 207, 209-10 (E.D. Va. 1997); Fed. R. Civ. P. 72(b)(3) ("The
district judge may accept, reject, or modify the recommended decision, receive further evidence,
orrecommit the matter to the Magistrate Judge with instructions."). When conducting this de
novo determination, a district court judge must give "fresh consideration" to the relevant portions

ofthe Magistrate Judge's R&R. United States v. Raddalz, 441 U.S. 667, 675 (1980).
A court reviewing a decision made under the Social Security Act must determine whether

the factual findings are supported by substantial evidence and were reached through application
ofthe correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial
evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than

a preponderance." Id. (citations omitted). In reviewing for substantial evidence, the Court does
not re-weigh conflicting evidence, make credibility determinations or substitute its judgment for
that of the Commissioner. Id. The Commissioner's findings as to any fact, if supported by

substantial evidence, are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389,
390(1971).
III. DISCUSSION

Plaintiff has asserted three objections to the R&R, arguing that the Magistrate Judge erred

in finding that the ALJ's rule application, RFC determination and credibility evaluation were

proper. First, Plaintiff objects to the Magistrate Judge's conclusion that the ALJ followed the
treating physician rule to appropriately weigh and sufficiently explain the medical opinions in
the record. In making the RFC determination, an ALJ must consider all relevant medical

evidence, and opinions from treating physicians will be given controlling weight iftwo
conditions are met: 1) the opinions are supported by medically acceptable clinical and laboratory

diagnostic techniques; and 2) the opinions are not inconsistent with other substantial evidence in
the record. See Craig, 76 F.3d at 590 (quoting 20 C.F.R. §404.1527(d)(2)). However, atreating

physician's testimony is not automatically given such deference. See id. ("[Fourth] Circuit
precedent does not require that atreating physician's testimony be 'given controlling weight.')
(citations omitted). "[I]f aphysician's opinion is not supported by clinical evidence or ifit is
inconsistent with other substantial evidence, it should be accorded significantly less weight." Id.
If the ALJ determines the treating physician's opinion is not entitled to controlling

weight, he or she still must decide how much weight to give the opinion and must provide
"specific reasons" for the weight given to the treating source. See Social Security Ruling
("SSR") 96-2p, 1996 WL 374188; see also 20 C.F.R. §404.1527 ("Regardless of its source, we
will evaluate every medical opinion we receive."). An ALJ is required to weigh medical

opinions based on: "(1) whether the physician has examined the applicant, (2) the treatment

relationship between the physician and the applicant, (3) the supportability ofthe physician's

opinion, (4) the consistency ofthe opinion with the record, and (5) whether the physician is a
specialist." Russell v. Comm'r ofSoc. Sec, 440 F. App'x 163,164 (4th Cir. 2011); see also 20
C.F.R. §§ 404.1527(c)(l)-(6). In addition, the ALJ may consider "any other factors that tend to
support or refute the opinion." SSR 06-03p, 2006 WL 2329939 at *4-*5.
The R&R recommends that the Court accept the ALJ's assignment ofslight weight to Dr.

Phillip R. Thomas's opinion. The Court finds that the ALJ considered the above factors and
offered detailed reasons for giving Dr. Thomas's opinions slight as opposed to controlling

weight. Dr. Thomas found Plaintiff had suffered from extreme limitations, but his opinion was
inconsistent with record evidence from the relevant period, which showed Plaintiff could have

performed light work. The ALJ considered that, while Dr. Thomas has been Plaintiffs treating
physician for years, he did not offer the opinion at issue until 2011, eleven years after the
relevant period. See R. 646-652; see also Russell, 440 F. App'x. at 164 (concluding that the
ALJ did not err in discounting the treating physician's opinion where the physician had not seen

plaintiff for six months prior to issuing an assessment). The ALJ adequately articulated his
finding that Dr. Thomas's 2011 opinion cited impairments that arose after 1999 or caused no

significant limitations during the relevant period. R. 29-31. This finding was supported by Dr.
Thomas's previous treatment notes, examination records, and Plaintiffs comments regarding her
physical and mental improvement, as well as the opinions of Dr. Ernesto Luciano-Perez, Dr.
Anuradha Datyner and Dr. Anthony J. DiStasio, physicians who examined Plaintiff during the
relevant period. See R. 196-97; 450-56; 473; 504; 513; 577-80; 588-89. The Court agrees with
the R&R and concludes thatthe ALJ sufficiently explained the weight he assigned to Dr.

Thomas's opinion. Therefore, the objection to the application ofthe treating physician rule is
unavailing to Plaintiff.

Second, Plaintiff objects to the ALJ's determination of her RFC, challenging his
determination of her ability to perform alimited range of light work during the relevant period.
Aclaimant's RFC "is the most [the claimant] can do despite [her] limitations." 20 C.F.R. §

404.1545 (a)(1). In other words, the "RFC is an assessment of an individual's ability to do
sustained work-related physical and mental activities in awork setting on aregular and

continuing basis." SSR 96-8p; see also Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012)

(noting that RFC is "the bureaucratic term for ability to work."). The ALJ is responsible for
assessing the claimant's RFC. 20 C.F.R. §404.1546(a). When assessing aclaimant's RFC, the
ALJ must consider all relevant evidence, including the "[claimant's] subjective complaints, the

objective medical evidence, and the opinions oftreating, examining, and non-examining

physicians." Felton-Miller v. Astrue, 459 F. App'x. 226,231 (4th Cir. 2011); see also 20 C.F.R.
§404.1520(e). The ALJ is "not required to obtain an expert medical opinion" in assessing a
claimant's RFC. Id.

In this case, the ALJ discussed Plaintiffs RFC in his findings. The ALJ concluded

Plaintiff could perform alimited range oflight work with asit-stand option and no more than
two hours per day of walking and standing, which accounted for the limitations related to her

knee injury and other impairments. R. 28-32. In accordance with the R&R, this Court finds that
the ALJ considered all record evidence, including Plaintiffs own comments and her physicians'

notes, to deduce that Plaintiffs migraines, COPD, and stomach problems were controlled with
medication, her depression and anxiety improved with treatment, and her alleged muscle pain
could not be confirmed as a significant issue. R. 30-31. The ALJ also considered chest x-rays
6

and a MRI ofthe brain to discover no significant complaints ofrespiratory or gastrointestinal

problems. Id. After reviewing the relevant evidence, the ALJ appropriately determined that the
only severe impairment Plaintiff suffered was the knee injury, from which the record shows she
regained her full active range ofmotion in November 1999. R. 582. The ALJ's determination
accurately reflects the record evidence; thus, the ALJ discussed Plaintiffs abilities and

impairments as required by regulation and substantial evidence in the record supports the
Magistrate Judge's conclusion that the ALJ appropriately assessed Plaintiffs RFC. This
objection to the RFC determination lacks merit.

Third, Plaintiff objects to the Magistrate Judge's conclusion that the ALJ properly
evaluated the credibility ofher testimony during the hearing. More specifically, Plaintiff alleges

that the ALJ improperly evaluated the factors and evidence required in assessing her credibility.

In evaluating aclaimant's subjective symptoms, the ALJ must follow atwo-step analysis: 1)
determine whether objective medical evidence supports the existence ofmedical impairments

which result from anatomical, physiological, or psychological impairments that reasonably could

produce the pain or other symptoms alleged; and 2) ifthe claimant meets the threshold inquiry,
then the ALJ must evaluate claimant's statements about the intensity and persistence ofthe pain

and the extent to which it impacts the claimant's ability to work. Craig, 76 F.3d at 594-95; see

also 20 C.F.R §§ 404.1529(a) and (c); 416.929(a) and (c). In other words, "[o]nce an underlying

physical or [m]ental impairment that could reasonably be expected to cause [a symptom] is
shown by medically acceptable objective evidence ... the adjudicator must evaluate the

disabling effects ofadisability claimant's [symptom], even though its intensity or severity is
shown only by subjective evidence." Mines v. Barnhart, 453 F. 3d 559, 564 (4th Cir. 2006). At
this second step, such evaluation ofclaimant's statements leads to a credibility determination

reserved for the ALJ, and this Court must show deference to the ALJ's credibility determinations

unless they are "unreasonable, contradict[] other findings of fact, or [are] based on inadequate
reason or no reason at all." Eldeco, Inc. v. NLRB, 132 F.3d 1007, 1011 (4th Cir. 1997) (quoting

NLRB v. McCullough Envtl. Servs., Inc., 5 F.3d 923, 928 (5th Cir. 1993)); but cf. Johnson v.
Barnhart, 434 F.3d 650, 658 (4th Cir. 2005) (noting that the court reserves the power to review
the ALJ's decisions for substantial evidence).

Here, the ALJ outlinedall of the evidence he considered in assessing the credibility of
Plaintiffs statements. R. 29-31. The ALJ recognized that Plaintiffs subjective judgment of her

symptoms at the hearing was not fully credible to the extent her testimony conflicted with
objective medical evidence and the statements made by Plaintiffand her physicians during the
relevant period. The ALJ cited Plaintiffs own statement in November 1999 that she had no
problems with her knee and hip to report in addition to her December 1999 statement that her

anti-depressant washelping her. R. 451, 582. The ALJ balanced Plaintiffs recent testimony
against evidence from the relevant period indicating Plaintiff suffered from various conditions
but could have engaged in a limited range of light work. R. 29-31. In view of these facts, the
Court finds that substantial evidence supports the ALJ's credibility determination, and Plaintiffs
objection fails on this ground.
IV. CONCLUSION

After careful de novo review of the objections to the Magistrate Judge's Report and
Recommendation, the Court finds that there is no meritorious reason to sustain Plaintiffs

objections. The Court does hereby ACCEPT and ADOPT the findings and recommendations
set forth by the United States Magistrate Judge filed May 6, 2014. Therefore, Defendant's
Motion for Summary Judgment is GRANTED, Plaintiffs Motion for Summary Judgment is
8

DENIED, and Plaintiffs Motion for Remand is DENIED. Accordingly, Defendant's decision

to deny supplemental security income is AFFIRMED. Judgment is hereby entered in favor of
the Commissioner.

The Court DIRECTS the Clerk to send a copy ofthis Order to the parties.
IT IS SO ORDERED.

Norfolk, Virginia

June fl ,2014

ten

Raymond A. JacSon"

United Mates District Judge