Bewley v. Berryhill
Filing
22
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 14 Motion for Summary Judgment; granting 16 Motion for Summary Judgment; adopting Report and Recommendations re 19 Report and Recommendations. Signed by District Judge Raymond A. Jackson on 12/4/2018. (dcou, ) Modified on 12/4/2018 (dcou, ).
DEC
4 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
c,
Norfolk Division
NICHOLAS BURDICK BEWLEY,
Plaintiff,
V.
CIVIL ACTION NO.2:17cv643
NANCY A.BERRYHILL,
Acting Commissioner of Social Security
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is currently before the Court on Plaintiff Nicholas Bewley's (hereinafter
"Plaintiff) Objection to the Magistrate Judge's Report and Recommendation.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial
review of the decision of the Commissioner of Social Security, denying Plaintiffs claims for a
disability insurance benefits ("DIE") and supplemental security income ("SSI"), pursuant to the
Social Security Act. On March 13,2018,pursuant to 28 U.S.C.§ 636(b)(1)(B),this Court entered
an order designating the United States Magistrate to conduct hearings and submit proposed
findings of fact and, if applicable, recommendations for the disposition of this matter. ECF No.
12. On September 24, 2018, the Magistrate Judge filed his Report and Recommendation
("Report"), in which he recommended that the Plaintiffs Motion for Summary Judgment be
DENIED; that Defendant's Motion for Summary Judgment be GRANTED; and that the final
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decision of the Commissioner be AFFIRMED. ECF No. 19. The Report also advised the
parties oftheir right to file written objections to the findings and recommendations the Magistrate
Judge made. Id. at 18. The clerk provided all of the parties copies of the Report. Id. On
October 9,2018,Plaintifffiled an Objection to the Magistrate Judge's Report. ECF No. 20. On
October 23,2018, Defendant filed a Response to Plaintiffs Objection. ECF No.21. This matter
is now ripe for disposition by the Court.
II. LEGAL STANDARD
When considering a party's objections to the findings and recommendations of the
Magistrate Judge, a district judge "must determine de novo any part of the 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], if objected to, are subject to final de novo determination on
such objections by a district judge, thus satisfying the requirements of Article III."). The phrase
"de novo", as used in Rule 72, means that a district courtjudge must give "fresh consideration" to
portions of the magistrate judge's report and recommendation. United States v. Raddatz, 447
U.S. 667,675 (1980). In other words,'"the Court should make an independent determination of
the issues' and should not give any special weight to the prior determination." Id.(quoting United
States V. First City Nat'I Bank,386 U.S. 361, 368 (1967)).
Under de novo review, "the magistrate judge's report and recommendation 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, or recommit
the matter to the magistrate judge with instructions.").
This Court has carefully and independently reviewed the record in this case and Plaintiffs
objection to the Report. Having done so,the Court finds that there are no meritorious reasons to
sustain Plaintiffs objection.
III. DISCUSSION
Plaintiff objects to the Magistrate Judge's finding that the Administrative Law Judge
("ALJ") properly allotted little weight to the opinions of Plaintiffs treating and consulting
physicians. ECF No. 20 at 1. Specifically, relying upon 20 C.F.R. Section 404.1527(c)(1),
Plaintiff argues that more weight should be given to the assessments recorded by examining
physicians as opposed to assessments provided by non-examining physicians. 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 of the 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).
Under the "attending physicians rule," the medical opinion of a claimant's treating
physician should be given "great weight" and "may be disregarded only if there is persuasive
contradictory evidence." Coffinan v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Accordingly,
"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." Craig, 76 F.3d at 590;
Mastro v. Apfel, 270 F.3d 171,178(4th Cir. 2001)("[A]treating physician's opinion on the nature
and severity ofthe claimed impairment is entitled to controlling weight if it is well-supported by
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medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in the record.").
Prior to Plaintiffs lower back injuries sustained in 2002, Plaintiff worked as a painter and
maintenance worker in a pool hall. R. at 32. After spinal infusion surgery in 2002, Plaintiff
underwent no additional corrective surgery and continuously physically cared for himself even
though he never returned to work. R. at 34,36,41-43. Plaintiffs medical records from October
of2011 through January of2017 indicate ongoing treatment for chronic back pain. R. at 306-29,
373-614,675-744. During this time frame Plaintiffs treating physician was Dr. Herbert Knight
("Dr. Knight"). Plaintiff complained of "chronic low back pain with limitations of range of
motion, no paresthesia, or numbness" and Dr. Knight appropriately adjusted his medications
throughout this time frame. R. at 415-59. In December 2013, Dr. Knight reported Plaintiff
maintained full range of motion in his extremities with lower back pain preventing him from
bending more than ten degrees. R. at 415. Plaintiffs medical records indicate that Plaintiff
repeatedly reported increased functionality in response to his medication management as
proscribed by Dr. Knight. R. at 393,411,415-59.
After visiting a neurosurgical specialist. Dr. David Waters, Plaintiff was prescribed
physical therapy but never saw a physical therapist for his injuries. R. at 40. "Dr. Waters' exam
showed good strength and sensation in his lower extremities, but poor mobility ofthe paravertebral
muscles and hamstrings." ECF. No. 19 at 5 (R. at 671-72). Despite his prognosis. Dr. Waters
did not believe Plaintiff was a good candidate for surgery. Id. Aside from various medications
and physical therapy, no other remedies were prescribed to plaintiff. After x-rays in October 2014
and an MRI in November 2016, the examinations revealed Plaintiffs impediments had not
advanced and there was no evidence of complication. R. at 376, 645-46. As the Magistrate
Judge pointed out, "Plaintiffs records consistently reported good muscle strength, no gait
disturbance, and no prescribed use of an assistive device." Id. at 14.
In March 2015, Plaintiffs attending physician. Dr. Knight, conducted a Residual
Functional Capacity Questionnaire indicating that Plaintiff suffered from chronic myofascial pain
syndrome in his lower back. R. at 388-89. Inconsistent with an analysis of Plaintiffs medical
records. Dr. Knight opined that Plaintiff was only capable ofsitting or standing for ten minutes at a
time and zero out of eight hours in a work day. Id. He also concluded plaintiff could never lift
more than ten pounds at a time even though Plaintiff stated in his testimony before the ALJ that he
could lift and carry twenty pounds at a given time. R. at 41. Dr. Knight furthered that Plaintiff
would likely be absent from work in excess of four times per month due to Plaintiffs diagnosis.
R. at 388-89. To remedy Plaintiffs ailments, Dr. Knight only prescribed various medications
indicative of conservative treatment for back pain. R. at 20. Such minimal treatment is also
inconsistent with the extensive restrictions Dr. Knight assesses in his questionnaire.
Notwithstanding the fact that Dr. Knight served as Plaintiffs attending physician for over seven
years, the ALJ reasonably afforded little weight to Dr. Knight's March 2015 assessment because
the broad limitations placed on Plaintiff were inconsistent with his medical records.
Also in March of 2015, Dr. Richard Hoffman, Plaintiffs consulting physician, examined
Plaintiff, reviewed his medical record, and observed that Plaintiff had an unsteady gait and
difficulty walking. R.at 344. Dr. Hoffman concluded that Plaintiffsuffered from a degenerative
disc disease in addition to side effects from his narcotic pain medication and decreased range of
motion. Id. Dr. Hoffman made his determinations after a one-time examination. Even when
analyzing Dr. Hoffinan and Dr. Knight's assessments in isolation, they too are inconsistent with
one another. Although Dr. Knight and Dr. Hoffman both describe substantial limitations placed
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upon Plaintiff, their assessments are inconsistent regarding, among other things, the health of
Plaintiffs gait and extent of his range of motion.
Contrary to the medical observations of Dr. Knight and Dr. Hoffman, two state agency
medical consultants reviewed Plaintiffs medical records and both determined that Plaintiff could
perform sedentary work with various lifting, sitting, and standing limitations. R. at 67-69,
105-07. Additionally, a vocational expert testified to the ALJ that Plaintiff could perform a
variety of unskilled jobs such as a food and beverage order clerk, a document preparer, or a
sedentary assembler. R. at 49.
As the Magistrate Judge noted in his Report, the ALJ's determination was supported by
substantial evidence in the record. Among other evidence,the ALJ was supplied with the medical
opinions of five doctors and a vocational expert. Although two doctors. Dr. Knight and Dr.
Hoffman, described a very limited range of activity for which Plaintiff may participate, their
assessments were inconsistent with one another and inconsistent with Plaintiffs medical records.
Furthermore, two doctors described greater potential for Plaintiff and the vocational expert
provided plausible job opportunities for a person experiencing Plaintiffs inhibitions.
Consequently, applying the standard set forth in Craig^ 76 F.3d 585, substantial evidence
supported the ALJ's finding that Dr. Knight and Dr. Hoffman's March 2015 assessments were
inconsistent with each other and with other evidence in the record, thusly entitled to significantly
less weight. Therefore, the Magistrate Judge correctly determined that the ALJ's decision was
supported by substantial evidence. Plaintiffs objection is without merit and is overruled.
IV. CONCLUSION
Accordingly, the Court finds that the Plaintiff has raised no grounds warranting this
Court's departure from the recommendations as stated in the Magistrate Judge's Report.
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After careful review ofthe Magistrate Judge's Report and Recommendation, the Court
does hereby ACCEPT and ADOPT the findings and recommendations set forth in the report of
the United States Magistrate Judge filed September 24, 2018. Plaintiff's Motion for Summary
Judgment is DENIED;Defendant's Motion for Summary Judgment is GRANTED;and the Final
Decision of the Commissioner 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.
Raymond A.Jackson
December
United States District Judge
-y ,2018
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