Cummins v. Colvin

Filing 16

MEMORANDUM ORDER adopting Report and Recommendations re 13 Report and Recommendations in its entirety; denying 8 Plaintiff's Motion for Summary Judgment; granting 10 Defendant's Motion for Summary Judgment and AFFIRMS the Recommendation of the Magistrate Judge that the final decision of the Commissioner be upheld. This case is thereby DISMISSED WITH PREJUDICE. Signed by District Judge Henry C. Morgan, Jr on 3/30/2015 and filed on 3/31/2015. (rsim, )

FILED
UNITED STATES DISTRICT COURT

MAR 3 1 2015

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

I C1|ERKUS d,STrioi COURT
' NORFOLK. VA

DOUGLAS L. CUMMINS,

Plaintiff,

v.

Civil Action No.: 2:14cvl65

CAROLYN W. COLVIN,

Acting Commissioner of Social Security,
Defendant.

MEMORANDUM ORDER

This matter comes before the Court on Plaintiff Douglas Cummins' ("Plaintiff)

Objections to the Magistrate Judge's Report and Recommendation. Doc. 14. For the reasons
explained below, the Court OVERRULES Plaintiffs objections after a de novo review and,
finding no clear error in the remainder of the Report & Recommendation ("R&R"), ADOPTS
the R&R, Doc. 13, in its entirety.
I.

BACKGROUND

Plaintiff does not object to the recitation of the procedural or factual background of this
case contained in the R&R, which sets forth, inter alia, the following.
A. Procedural History
Plaintiff filed an application for Disability Insurance Benefits ("DIB") with the Social

Security Administration ("SSA") on April 15, 2011, alleging a disability onset date of March 31,

2011. R. at 114. The application alleged that Plaintiff suffered from back pain, which prevents

him from undertaking full-time employment. Doc. 11 at 2. Plaintiffs application was initially
denied, and then denied upon reconsideration as well. Doc. 13 at 1. Plaintiff then requested an

administrative hearing, which was held on December 10, 2012.

Id.

At this hearing, the

Administrative Law Judge ("ALJ") found that Plaintiff was not disabled. Id. at 2.
1

Plaintiff appealed this decision, and was denied review by the Appeals Council. Id.
Having thereby exhausted his administrative remedies, Plaintiff filed the instant action seeking
judicial review ofthe Commissioner's final decision. Doc. 1. The parties filed cross-motions for
summary judgment, which were dealt with by the R&R, entered on November 7, 2014. See Doc.
13. Plaintiff filed his Objections to the R&R on November 21,2014. Doc. 14. Defendant filed
a Response on December 2, 2014. Doc. 15.
B. Factual Background

Plaintiff was fifty-one (51) years old at the alleged onset of his disability. Doc. 13 at 2.

He has a tenth-grade education, and his work experience includes a long career as a pump station
mechanic for the City of Chesapeake. Id.
Plaintiffs history of back pain dates back to 1998 and includes four surgical procedures.
Id. at 2. Plaintiff has been primarily treated for his back condition by two physicians, Dr. David
Goss, an orthopedic surgeon, and Dr. Beth Winke, a specialist in pain management, kf at 2-3.

He has seen each doctor many times, and the results of these visits make up a substantial portion
ofthe relevant medical record in this case.

In preparation for this litigation, Dr. Winke completed two check-the-box evaluations of

Plaintiffs ability to maintain full-time employment. Dr. Winke indicated that her opinion was
that Plaintiff, among other restrictions, could only sit for one hour and could only stand or walk

for one hour throughout a normal eight hour work day. Id at 6. Two government doctors also
completed an equivalent evaluation of Plaintiff based upon the available medical records. From

their review, the government doctors essentially agreed that Plaintiff could occasionally lift up to
201bs, frequently lift lOlbs, and could stand, walk, or sit for up to six hours of an eight hour day.
Id.

At the hearing before the ALJ, Plaintiff admitted that he was currently employed in a

part-time job redistributing vehicles for a rental company, which regularly involved as much as
250 miles of driving in a single work-day. Id at 7. Furthermore, the ALJ heard testimony from
a Vocational Expert ("VE") who claimed that Plaintiff was still capable of "light work," so long
as it included no ladders, ropes, scaffolds, and only occasional kneeling, crouching, crawling, or

exposure to heights and hazards. The VE stated that a hypothetical employee similar to Plaintiff
could find work in the national economy as a machine operator or rental clerk.
II.

STANDARD OF REVIEW

Pursuant to the Federal Rules of Civil Procedure, the Court reviews de novo any part of a
Magistrate Judge's R&R 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.

As to the

unchallenged portions ofthe R&R, the Court "must 'only satisfy itself that there is no clear error
on the face ofthe record in order to accept the recommendation.1" Diamond v. Colonial Life &

Ace. Ins. Co.. 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee's note).

In exercising a de novo review, the Court analyzes the Commissioner's final decision

using the same standard as that used by the Magistrate Judge. Specifically, the Court's review of

the Commissioner's decision is limited to determining whether that decision was supported by
substantial evidence on the record and whether the proper legal standard was applied in
evaluating the evidence. 42 U.S.C. § 405(g); Johnson v. Barnhart. 434 F.3d 650, 653 (4th Cir.
2005) (per curiam). Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Id. (quoting Craig v. Chater. 76 F.3d

585, 589 (4th Cir. 1996)) (internal quotation marks omitted). Courts have further explained that
substantial evidence is less than a preponderance of evidence but more than a mere scintilla of
evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Importantly, in reviewing the

ALJ's decision the Court does not "re-weigh conflicting evidence, make credibility

determinations, or substitute [its] judgment for that ofthe [ALJ]." Craig, 76 F.3d at 589. Thus,
if the Court finds in its de novo review of the objections that there was substantial evidence to

support the ALJ's factual findings, even if there was also evidence to support contrary findings,
the R&R must be adopted.
III.

ANALYSIS

Plaintiff disagrees with the ALJ's conclusion that he is not eligible for DIB, and asks this
Court to reject the ruling ofthe Magistrate Judge. Doc. 14 at 1. In his Objections to the R&R,
Plaintiff argues that the Magistrate Judge erred in "treating physician opinion based on form
rather than substance." Id.

The main issue set forth in Plaintiffs Objection is whether the ALJ and the Magistrate
Judge acted properly by discounting the significance of Dr. Winke's opinion of Plaintiffs
condition relative to the opinions of the other medical experts. Id. The opinion-at-issue was
completed by Dr. Winke in November 2012, at the request of Plaintiffs attorney, in the form of a
one-page "Medical Evaluation Report" and a two-page "Physical Capacities Assessment." Doc.

13 at 5. Both forms were "check-the-box evaluations." Id. at 6. The only written explanation
provided by Dr. Winke in these forms was under a section entitled "Clinical observations,

findings and test results supporting your diagnoses." R. at 340 (emphasis in original).

Plaintiff argues that the R&R improperly places form over substance by discounting the
opinion due to its format as a "check-the-box" evaluation.

Doc. 14 at 1-2.

Plaintiff

oversimplifies the analysis of Dr. Winke's opinion, however, which goes far beyond just its
format. Most notably, the discounting of Dr. Winke's opinion is supported by two points: first,
its lack of written explanation, and second, its inconsistency with other available evidence.
In Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993), the United States Court of Appeals
for the Third Circuit described forms where the physician need "only to check a box" as "weak
evidence at best." 994 F.2d at 1065 (emphasis added). The implication here is not a distaste for

check-the-box forms generally, but for medical reports that do not contain at least a minimal
amount of written explanation. A series of boxes to check is in fact a very convenient way to
summarize a detailed medical diagnosis; however, such a bare conclusion cannot receive full
credit without proper explanation.

Here, the form used by Dr. Winke provided her the opportunity to explain the medical

evidence supporting her diagnosis. R. at 340. Instead of providing her rationale or explaining
the tests which supported her opinion, however, Dr. Winke simply states that "[t]he patient states

his current symptoms increase with bending and lifting, as well as standing, walking, twisting,
driving, climbing and with any type of vibrations, such as riding in a car." Id Since Dr. Winke
supported her diagnosis with nothing more than the Plaintiffs subjective claims, the Court

FINDS that the ALJ was correct to discount the significance of her opinion, especially relative to
other medical experts who provided far more detailed explanations.
Next, it was also appropriate to discount Dr. Winke's opinion on Plaintiffs disability due
to its inconsistency with prior medical records, including her own evaluations. In her November

2012 opinion, Dr. Winke stated that Plaintiff could only occasionally lift up to five pounds, could
only sit, stand, or walk for up to an hour per work day, and that he would be forced to miss work
six to eight days per month on average. R. at 340.

This opinion is inconsistent both with Dr. Winke's prior treatment of Plaintiff and with
Plaintiffs current part-time employment. Defendant correctly cites to multiple locations within
the record where Dr. Winke's recent treatment of Plaintiff indicated "normal posture/body

mechanics," normal ambulation, no lumbar tenderness, and "full motor strength (5/5) in all areas
tested." Doc. 15 at 9-10. Furthermore, the ALJ also gave "significant weight" to the opinion of

Plaintiffs other treating physician, Dr. Goss, who limited Plaintiffs lifting to no more than

twenty-five pounds and said "he is capable of medium work." Doc. 13 at 13. The part-time
work obtained by Plaintiff also undermines Dr. Winke's opinion. By Plaintiffs own admission,
this job required driving 250 miles at a time to transport rental vehicles and then returning that
same day as a passenger in a large van. R. at 14. This admission directly contradicts both Dr.
Winke's opinion regarding Plaintiffs ability to sit for only one hour per day and "moderate"
restriction on his ability to drive automotive equipment. See R. at 340. Accordingly, the Court
FINDS that substantial evidence justifies the ALJ in discounting Dr. Winke's opinion based
upon its inconsistency with other evidence contained in the record.
IV. CONCLUSION

For the reasons discussed above, the Court concludes that the ALJ's decision is supported
by substantial evidence in the record.

Therefore, after a de novo review, the Court

OVERRULES Plaintiffs Objections, Doc. 14, and finding no other clear error, ADOPTS the

R&R, Doc. 13, in its entirety. Accordingly, the Court DENIES Plaintiffs Motion for Summary
Judgment, Doc. 8, GRANTS Defendant's Motion for Summary Judgment, Doc. 10, and
AFFIRMS the Recommendation of the Magistrate Judge that the final decision of the
Commissioner be upheld. This case is thereby DISMISSED WITH PREJUDICE.

Plaintiff is advised that he may appeal from this Opinion and Final Order by forwarding a

written notice of appeal to the Clerk of the United States District Court, United States
Courthouse, 600 Granby Street, Norfolk, Virginia 23510. Said written notice must be received

by the Clerk within sixty (60) days from the date of this Order. If Plaintiff wishes to proceed in
forma pauperis on appeal, the application to proceed in forma pauperis is to be submitted to the
Clerk, United States Court of Appeals, Fourth Circuit, 1100 E. Main Street, Richmond, Virginia
23219.

The Clerk is REQUESTED to send a copy of this order to all counsel of record.
It is so ORDERED.

hi

Henry Coke Morgan, Jr.
Senior United States District Judce

(ENRYCOKE MORGAN, JR.
frfe
5ENIOR UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
March 3$, 2015