Cook v. Colvin
Filing
17
MEMORANDUM OPINION AND ORDER - This Court has independently reviewed the record in this case and the objections to the R&R. Having done so, the Court finds that there is no meritorious reason to sustain Plaintiffs objections. After careful review of the R&R, the Court does hereby ACCEPT and ADOPT the findings and recommendations set forth in the report of the United States Magistrate Judge filed on July 13,2016. Defendant's motion for summary judgment is GRANTED and Plaintiffs motions for summary judgment and remand are both DENIED. The Court DIRECTS the Clerk to send a copy of this Order to the parties. Copies distributed as directed. Signed by District Judge Raymond A. Jackson on 11/8/2016. (cchr)
FILED
NOV - 8 2UI8
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CLtHK, y.S. DISI RICT COURT ;
-NORFOLK. VA
iVA
DIANNE RICHARDS COOK,
Plaintiff,
V.
CIVIL ACTION NO. 2:15cv278
CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration,
Defendant.
MEMORANDUM OPINIONAND ORDER
This matter is currently before the Court on Dianne Richard Cook's ("Plaintiff)
objections to the Magistrate Judge's Report and Recommendation ("R&R"). For the reasons set
forth below, the R&R is ADOPTED, the Social Security Administration Commissioner's
("Defendant") motion for summary judgment is GRANTED, and Plaintiffs motions for
summary judgment and remand are DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for Disability Insurance Benefits ("DIB") on December 22,
2011, alleging a disability onset date of August 1, 2009, of lower back pain due to a work-related
injury. R. 193-207. The Commissionerdenied Plaintiffs application, first on May 2,2012, and
again after reconsiderationon January 4, 2013. R. 124-27, 141-47. At Plaintiffs request, the
ALJ held a hearing on November 21,2013. R. 42-68. The ALJ denied Plaintiffs application on
January 15,2014. R. 21-35. On April 15,2015, the Appeals Council denied Plaintiffs request
1
J
to review the ALJ's decision, thereby making the ALJ's decision the final decision of the Acting
Commissioner. R. 1-3.
On June 19,2015, Plaintiff, through counsel, filed a complaint seeking the Court's
review of the ALJ's decision. ECF No. 1. The Acting Commissioner filed an Answer on August
20,2015. ECF No. 4. Plaintiff filed a Motion for Summary Judgment and a Motion to Remand
on September 25,2015. ECF Nos. 8,9. The Acting Commissioner filed a Motion for Summary
Judgment on October 28, 2015. ECF No. 11. On July 13,2016, a United States Magistrate
Judge filed a R&R, in which he recommended that Plaintiffs Motions for Summary Judgment
and Remand be denied, that Defendant's Motion for Summary Judgment be granted, and that the
Commissioner's final decision (i.e., the ALJ's decision) be affirmed. ECF No. 13.
On July 25, 2016, Plaintiff filed Objections to the R&R. ECF No. 14. On August 4,
2016, Defendant filed a response. ECF No. 15. This matter is now ripe for disposition.
IL STANDARD OF REVIEW
A district judge is required to "determine de novo any part of the magistrate judge's
disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). The "de novo"
requirement means that a district court judge must give "fresh consideration to those issues [in
the R&R] to which specific objection has been made by a party." United States v. Raddatz, 447
U.S. 667,675 (1980);
Wilmer v. Cook, 774 F.2d 68, 73 (4th Cir. 1985) ("[A]ny individual
findings of fact or recommendations for disposition by the [Magistrate Judge], if objected to, are
subject to final de novo determination on such objections by a district judge ...."). "The district
judge may accept, reject, or modify the recommended disposition; receive further evidence; or
recommit the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
A district court reviewing an administrativedecision under the Social Security Act must
determine whether the factual findings are supported by substantial evidence and were reached
through application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996) (superseded by statute on other grounds). "Substantial evidence" is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion," and "consists
of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id.
(internal quotation and 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 (or the
Commissioner's designate, the Administrative Law Judge ("ALJ")). Id. The ALJ's findings as
to any fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g).
in. DISCUSSION
Plaintiff raises two objections to the R&R: 1) The ALJ failed to properly weigh the
medical opinion evidence; and 2) The ALJ failed to properly evaluate Plaintiffs credibility.
After a full review of the record, the parties' briefs both on Plaintiffs objections and on the
underlying Motions for Summary Judgment, the Court, having given fresh consideration to the
Magistrate Judge's findings, finds that the ALJ's decision was supported by substantial evidence.
Therefore, for the additional reasons stated below, the Court ADOPTS the R&R.
A. Medical Opinion Evidence
Plaintiff first objects to the Magistrate Judge's finding that the ALJ properly weighed the
medical opinion evidence to determine Plaintiffs residual functional capacity ("RFC").
Specifically, Plaintiff argues the ALJ gave too little weight to the opinions of Dr. Caloras and Dr.
Boucher, while giving too much weight to the opinion of Dr. Familant.
1. Dr. Caloras
Plaintiff argues that the opinion of Dr. Caloras should have been given controlling weight
in determining Plaintiffs RFC. ECF No. 14 at 4. The ALJ must "always consider the medical
opinions in [the] case record together with the rest of the relevant evidence
" 20 C.F.R. §
404.1527(b). The ALJ will give controlling weight to a treating doctor's opinion so long as the
opinion is "not inconsistent with the other substantial evidence in [the] case record ...." 20
C.F.R. § 404.1527(c)(2). The term "substantial evidence," as used here, "is intended to indicate
that the evidence that is inconsistent with the opinion need not prove by a preponderance that the
opinion is wrong. It need only be such relevant evidence as a reasonable mind would accept as
adequate to support a conclusion that is contrary to the conclusion expressed in the medical
opinion." Titles II & XVI: Giving Controlling Weight to Treating Source Med. Opinions, SSR
96-2P (S.S.A. July 2,1996).
The ALJ, in explaining the decision to not give controlling weight to Dr. Caloras's
opinion, said, "Most importantly, a close review of the record shows that Dr. Caloras' opinions
(Exhibits 13F-15F, 18F) are inconsistent with his own progress notes, other medical source
opinions, and the claimant's course of treatment and objective findings, which are fairly
minimal." R. 30. The ALJ then cited the myriad evidence and the accompanying exhibits that
show these inconsistencies. R. 30-32. The Court need not repeat them here. The Court finds
that this constitutes substantial evidence such that it was proper for the ALJ to not give
controlling weight to Dr. Caloras's opinion.
Plaintiffs objection references the parts of Dr. Caloras's notes that provide evidence of
her disability. Plaintiff argues that this evidence is sufficient to give Dr. Caloras's opinion
controlling weight. Again, the ALJ must "always consider the medical opinions in [the] case
record together with the rest of the relevant evidence
" 20 C.F.R. § 404.1527(b). "Even if a
treating source's medical opinion is well-supported, controlling weight may not be given to the
opinion unless it also is 'not inconsistent' with the other substantial evidence in the case record."
Titles II & XVI: Giving Controlling Weight to Treating Source Med. Opinions, SSR 96-2P
(S.S.A. July 2, 1996).
When the ALJ considered all the relevant evidence together, he determined that Dr.
Caloras's opinion was inconsistent with the other evidence in the case record. Finding that this
determination by the ALJ was supported by substantial evidence, the Court ends its inquiry here.
Precedent dictates that the Court does not re-weigh conflicting evidence or substitute its
judgmentfor that of the ALJ, so long as the ALJ's findings are supported by "substantial
evidence" and are reached through application of the correct legal standard. The determination
of the ALJ is supported by substantial evidence, which is expounded and cited thoroughly in the
decision, and the ALJ employed the correct legal standard in reaching that determination.
In instances, like this one, where the treating doctor's opinion is not given controlling
weight, the opinion is "still entitled to deference and must be weighed using all of the factors
provided in 20 CFR 404.1527 and 416.927. In many cases, a treating source's medical opinion
will be entitled to the greatest weight and should be adopted, even if it does not meet the test for
controlling weight." Titles II & XVI: Giving Controlling Weight to Treating Source Med.
Opinions, SSR 96-2P (S.S.A. July 2, 1996). The weighing factors are: 1) Length of the treatment
relationship and the frequency of examination; 2) Nature and extent of the treatment relationship;
3) Supportability of the opinion with evidence; 4) Consistency with the rest of the record; 5)
Specialization of the doctor; and 6) Any other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(2H6); 20 C.F.R. § 416.927(c)(2H6). Plaintiffs objection
alleges that "[t]he ALJ gave these factors short shrift" and, therefore, did not apply the correct
legal standard. ECF No. 14 at 5.
Regarding the first factor (i.e., the length of the treatment relationship and frequency of
examination), the ALJ's decision states, "Even progress notes from 2011 and 2012 suggest that
the claimant has seen Dr. Caloras relatively few times over the course of the last three years
(Exhibits 12F, 14F, 16F)." R. 30.
Moreover, Plaintiffs objection concedes,"... the ALJ correctly noted that Dr. Caloras
had not treated [Plaintiff] frequently
" ECF No. 14 at 5. Plaintiff argues that,
notwithstanding this infrequent treatment, this factor should not be weighed against Dr. Caloras
because Plaintiff had previously received treatment at the same facility where Dr. Caloras
practiced. This fact does not negate the ALJ's determination that Dr. Caloras treated Plaintiff
infrequently, nor does it lead the Court to conclude that the ALJ did not have substantial
evidence for his determination.
Regarding the second and third factors, the Court finds that the ALJ appropriately
considered the nature and extent of the treatment relationship, as well as the supportability of Dr.
Caloras's opinion with evidence. This is shown in the ALJ's thorough recitation of Dr. Caloras's
findings in his decision. See R. 29-30. The ALJ also addressed the fourth factor, (i.e., the
opinion's consistency with the rest of the record). As previously mentioned in the "controlling
weight" discussion, the ALJ considered all the evidence in the record and concluded that Dr.
Caloras's opinion was inconsistent with the substantial evidence in the record as a whole.
The ALJ addressed the fifth factor (i.e., the specialization of the doctor) by saying, "Dr.
Caloras is a family practitioner who appears without any specific other medical specialty
relevant to the claimant's impairments. Most of the claimant's records from 2009 and 2010, in
fact, are from other medical providers who do specialize in orthopedic and similar issues
(Exhibits 1F, 4F, 7F-9F)." R. 30. The evidence comprising the final factor (i.e., any other
information which tends to support or contradict the opinion) are subsumed in the other five.
The Court finds that the ALJ applied the correct legal standard here because he
considered these factors when making his determination about the appropriate weight to give to
Dr. Caloras's opinion. The Court also finds that his determination is supported by substantial
evidence, as cited on pages 29 and 30 of the Record. Therefore, the Court will not re-weigh the
evidence, but will defer to the ALJ's decision.
2. Dr. Boucher
Plaintiff argues that the ALJ should have given more weight to the opinion of examining
occupational medicine specialist Dr. Boucher. ECF No. 14 at 5-6. Dr. Boucher examined
Plaintiff on one occasion. As such. Dr. Boucher is a "nontreating source," meaning his opinion
is not entitled to receive "controlling weight." 20 C.F.R. § 404.1502; 20 C.F.R. § 416.902; Titles
II & XVI: Giving Controlling Weight to Treating Source Med. Opinions, SSR 96-2P (S.S.A.
July 2, 1996). However, the ALJ is still required to use the aforementioned six-factor analysis to
determine the appropriate weight to give Dr. Boucher's opinion. 20 C.F.R. § 404.1527(c); 20
C.F.R. § 416.927(c).
Regarding the first factor (i.e., the length of the treatment relationship and frequency of
examination), the ALJ noted that Dr. Boucher "only examined [Plaintiff] on one occasion
"
R. 33. The ALJ also considered the nature and extent of the treatment relationship (second
factor), as well as the supportability of Dr. Boucher's opinion with evidence (third factor), as
shown in his noting that Dr. Boucher's only examination occurred "early in the adjudicatory
period, less than 12 months after the alleged onset date, and his opinions do not reflect
[Plaintiffs] subsequent longitudinal functioning." Id. This last part about Plaintiff's subsequent
change in ability speaks to the fourth factor (i.e., the opinion's consistency with the rest of the
record).
The fifth factor is the specialization of the person giving the opinion. The ALJ pointed
out that Dr. Boucher is an "independent examiner," but did not mention his specialty in
occupational medicine. The ALJ also failed to explain how this information affected his
determination to give "relatively little weight" to Dr. Boucher's opinion. However, taken in the
context of the ALJ's larger discussion of Dr. Boucher's opinion, as referenced above, the fact
that the ALJ omitted the occupational medicine specialty does not render his determination
undeserving of the Court's deference. It cannot be said that the ALJ's decision to give little
weight to Dr. Boucher's opinion was not based on substantial evidence, nor that he applied the
wrong legal standard in evaluating Dr. Boucher's opinion.
i. Dr. Familant
Plaintiff argues that "the only medical evidence credited by the ALJ that actually
conflicts with the opinions from Dr. Caloras is from [Dr. Familant]." EFC No. 14 at 4. Dr.
Familant was the State agency medical consultant assigned to review Plaintiffs case. His
8
examination of Plaintiffs medical records led him to conclude that Plaintiff was capable of
performing light work, so long as she had the opportunity to change positions for two to three
minutes every hour. The R&R sufficiently summarizes the evidence supporting this conclusion.
ECF No. 13 at 6-8. Dr. Familant did not treat or examine Plaintiff personally, making him a
"nonexamining source." 20 C.F.R. § 404.1502; 20 C.F.R. § 416.902. Therefore, the ALJ must
use the same six-factor analysis to determine the appropriate weight to give Dr. Familant's
opinion. 20 C.F.R. § 404.1527(e); 20 C.F.R. § 416.927(e).
As Dr. Familant is a nonexamining medical consultant, the first two factors do not weigh
in favor of his opinion because they deal with aspects of the treatment relationship. The ALJ did
not mention either factor. After giving a five-page summary of the evidence in the record, the
ALJ's decision states, "Based on this evidence, the State agency medical consuhant's opinion is
more persuasive than Dr. Caloras' opinions (Exhibits 13F-15F, 18F), and the undersigned gives
the State agency consultant's opinion relatively great weight (Exhibits 7A-8A)." R. 33. The
ALJ gave Dr. Familant's opinion more weight because the other evidence in the record was more
consistent with Dr. Familant's opinion, as stated above, than with either Dr. Caloras's or Dr.
Boucher's opinions. Id. This speaks to the supportability of Dr. Familant's opinion with
evidence (third factor), as well as the opinion's consistency with the rest of the record (fourth
factor).
The fifth factor is the specialization of the person giving the opinion. The ALJ did not
mention Dr. Familant's specialty. However, just as with Dr. Boucher, the fact that the ALJ
omitted mention of the specialty does not render his determination undeserving of the Court's
deference. The ALJ gave a detailed, five-page summary of the medical evidence in the record.
followed by his explanation of how that evidence is inconsistent with Dr. Caloras's and Dr.
Boucher's opinions, but consistent with Dr. Familant's. See R. 29-33. He correctly cites the
appropriate exhibits that support his findings. Therefore, it cannot be said that the ALJ's
decision to give more weight to Dr. Familant's opinion was not based on substantial evidence,
nor that he applied the wrong legal standard in evaluating Dr. Familant's opinion.
Plaintiff argues that Dr. Familant's opinion is the only evidence in the entire record that
contradicts Dr. Caloras's findings. EFC No. 14 at 4. Plaintiff's argument then quotes case law
saying that "the opinions from a non-examining state agency medical source are, standing alone,
'not enough to constitute substantial evidence.'" Id. (quoting Radford v. Colvin, 734 F.3d 288,
295 (4th Cir. 2013)). Plaintiff mischaracterizes the evidence in the record. Again, the ALJ wrote
five pages pointing out the multiple instances where Dr. Caloras's opinion is "inconsistent with
his own progress notes, other medical source opinions, and the claimant's course of treatment
and objective findings ...." R. 30; see R. 29-33. Dr. Familant's opinion does not "stand alone"
as the only evidence that contradicts Dr. Caloras's opinion.
B. Plaintiffs Credibilitv
Plaintiffs second objection is that the ALJ failed to properly evaluate Plaintiffs
credibility. Specifically, Plaintiff argues that the ALJ erred by finding that Plaintiffs testimony
about her impairments was not credible.
"The determination of whether a person is disabled by pain or other symptoms is a twostep process. First, there must be objective medical evidence showing 'the existence of a medical
impairment(s)... which could reasonably be expected to produce the pain or other symptoms
alleged."' Chater, 76 F.3d at 594 (4th Cir. 1996) (quoting 20 C.F.R. §§ 416.929(b) &
10
404.1529(b)) (emphasis in original). "At this stage of the inquiry, the pain claimed is not
directly at issue; the focus is instead on establishing a determinable underlying impairment...
which could reasonably be expected to be the cause of the disabling pain asserted by the
claimant." Id. Plaintiff has established that such an impairment exists in this case.
In the second step of this determination process, "the intensity and persistence of the
claimant's pain, and the extent to which it affects her ability to work, must be evaluated." Id. at
595. "[T]his evaluation must take into account not only the claimant's statements about her pain,
but also 'all the available evidence,' including the claimant's medical history, medical signs, and
laboratoryfindings; any objective medical evidence of pain...; and any other evidence relevant
to the severity of the impairment, such as evidence of the claimant's daily activities, specific
descriptions of the pain, and any medical treatment taken to alleviate it." Id.
"Although a claimant's allegations about her pain may not be discredited solely because
they are not substantiated by objective evidence of the pain itself or its severity, they need not be
accepted to the extent they are inconsistent with the available evidence, including objective
evidence of the underlying impairment, and the extentto which that impairment can reasonably
be expected to cause the pain the claimant alleges she suffers." Id.
The ALJ determined that Plaintiffs testimony about her impairments was not credible
because her characterizationof her symptoms was inconsistent with the "objective medical
evidence" in the record and with Plaintiffs own descriptions of tasks she was able to perform.
R. 30-32. The Magistrate Judge included a summary of these inconsistencies in the R&R, and
Defendant supplemented this summary in her response to the R&R. See ECF No. 13 at 19-20;
see also ECF No. 15 at 4-5. This determination is explained sufficiently in the ALJ's decision.
11
See R. 30-32. The ALJ's decision is supported by the substantial evidence and it was reached
through the application of the correct legal standard. Therefore, the Court will defer to the ALJ's
decision and will not re-weigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the ALJ.
IV. CONCLUSION
This Court has independently reviewed the record in this case and the objections to the
R&R. Having done so, the Court finds that there is no meritorious reason to sustain Plaintiffs
objections. After careftil review of the R«&;R, the Court does hereby ACCEPT and ADOPT the
findings and recommendations set forth in the report of the United States Magistrate Judge filed
on July 13,2016. Defendant's motion for summary judgment is GRANTED and Plaintiffs
motions for summary judgment and remand are both DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to the parties.
IT IS SO ORDERED.
Norfolk, Virginia
November ^ ,2016
Raymond AyJatkSon
United otates District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?