Keaton v. Colvin

Filing 14

MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 3/3/2017. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ARLONDA S. KEATON,
Plaintiff,

v.

Civil Action No. 3:15cv588

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration
Defendant.
MEMORANDUM OPINION
Plaintiff Arlonda Keaton challenges the decision of the Commissioner of the Social
Security Administration (the ''Commissioner") denying her claims for Disability Insurance
Benefits ("DIB") and Supplemental Security Income ("SSI"). This matter comes before the
Court on the Report and Recommendation ("R&R") prepared by the Honorable David J. Novak,
United States Magistrate Judge, (ECF No. 11), addressing the parties' cross-motions for
summary judgment, (Pl.'s Mot. Summ. J., ECF No.7; Def.'s Mot. Surnrn. J., ECF No.9). The
Magistrate Judge recommends that this Court deny Keaton's Motion for Summary Judgment,
grant the Commissioner's Motion for Summary Judgment, and uphold the final decision of the
Commissioner. (R&R at 32.) Keaton objects to the R&R. (Pl.'s Objs. R&R, ECF No. 12.) The
Court exercises jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 1 The Court
dispenses with oral argument, as it would not materially aid the decisional process.

1

Section 405(g) provides in relevant part, "[a]ny individual, after any final decision of
the Commissioner of Social Security made after a hearing to which he [or she] was a party ...
may obtain a review of such decision by a civil action ... in [a] district court." Section
1383(c)(3) confirms that "a final determination of the Commissioner" after a hearing "shall be
subject to judicial review as provided in section 405(g)."

For the reasons articulated below, the Court will overrule Keaton's objections and adopt
the R&R. Accordingly, the Court will deny Keaton's Motion for Summary Judgment, (ECF
No.7), grant the Commissioner's Motion for Summary Judgment, (ECF No.9), and affirm the
decision of the Commissioner.

I. Factual and Procedural Background
A. Keaton's Background and Medical History
Keaton is a sixty-two year old high school graduate who has completed three years of
college. (R. at 231.) She worked at several jobs from 1996 to 2008. 2 (R. at 230-31.) Keaton
applied for DIB in 2012, and for SSI in 2013. (R. at 34.) She claims disability based on
hypertension, chronic obstructive pulmonary disease, left thoracic outlet syndrome, degenerative
joint disease of the cervical spine with left ulnar neuropathy/cubital tunnel syndrome,
osteoarthritis of the lumbar spine, mild cardiomyopathy, and minimal coronary artery disease.
(R. at 36.) In addition, Keaton takes the medication Sertraline to control her "not severe"

conditions of sleep apnea and depression/anxiety. (R. at 37.)
Keaton has several impairments that affect her daily life, including aortic valve diseases,
spine disorders, essential hypertension, and congenital heart disease. (R. at 101-02.) Although
Keaton has exertion limitations, she is able to sit for about six hours in an eight-hour workday
with normal breaks, and stand or walk for about six hours in an eight-hour workday. (R. at 103.)
Keaton cannot tolerate concentrated exposure to fumes, odors, dusts, or gases, she cannot
tolerate poor ventilation, and she must avoid concentrated exposure to hazardous machinery and
heights. (R. at 104.)

2

Keaton previously worked as a secretary, a program support specialist, a mail carrier,
and a medical billing clerk. (R. at 59-65.)
2

B. Procedural History

Keaton applied for DIB and SSI under the Social Security Act (the "Act") on May
29, 2012, and April23, 2013, respectively. (R. at 34.) At the time she filed those applications,
Keaton alleged an onset date of disability ("AOD") of Apri115, 2003. The Social Security
Administration ("SSA") denied her claims, and denied her later request for reconsideration.
(R. at 34.) Keaton then requested a hearing before an Administrative Law Judge ("ALJ").
(R. at 142.) In April of2014, Keaton amended her AOD from Aprill5, 2003, to January
10,2012. (R. at 34.) On Apri121, 2014, an ALJ conducted a hearing and found against Keaton.
(R. at 34.) On August 7, 2015, the Appeals Council denied Keaton's request for review,
rendering the ALJ's decision the final determination of the Commissioner. (R. at 1.)
Keaton then sought judicial review of the ALJ' s decision and this Court referred the
matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)? Keaton filed a Motion for
Summary Judgment, (ECF No.7), arguing that the ALJ erred in evaluating the medical evidence
and opinions, erroneously discounted Keaton's credibility, and failed to properly assess Keaton's
residual functional capacity ("RFC"). (Pl.'s Mem. Supp. Mot. Summ. J. 4-29, ECF No. 8;
R&R 1, ECF. No. 11.) The Commissioner filed a Motion for Summary Judgment at a later date.
(ECF No.9.) The Magistrate Judge considered the parties' cross-motions for summary
judgement and issued an R&R. (R&R, ECF No. 11.) Keaton timely filed her objections to the
R&R in this Court, (ECF No. 12), and the Commissioner properly responded to the objections,
(ECF No. 13). The Court addresses Keaton's objections below.

3

28 U.S.C. § 636(b)(1 )(B) permits a District Court Judge to refer any motion "excepted
in subparagraph (A)" to a magistrate judge for the limited purpose of conducting a hearing and
submitting a recommended ruling. 28 U.S.C. § 636(b){l)(B).

3

II. Standard of Review
A. Appellate Standard of Review
This Court reviews de novo any part of the Magistrate Judge's R&R to which a party has
properly objected. 28 U.S.C. § 636(b)(l)(C);4 Fed. R. Civ. P. 72(b)(3). 5 In doing so, "[t]he
district judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ.
P. 72(b)(3).
In reviewing the ALJ's decision regarding disability benefits, this Court '"must uphold
the factual findings of the [ALJ] if they are supported by substantial evidence and were reached
through application of the correct legal standard."' Hancock v. Astrue, 667 F.3d 470, 472
(4th Cir. 2012) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)). Substantial
evidence supports a finding if the finding is based on '"relevant evidence [that] a reasonable
mind might accept as adequate to support a conclusion."' Mastro v. Apfel, 270 F.3d 171, 176
(4th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389,401 (1971)). Substantial evidence
requires "more than a mere scintilla, but less than a preponderance of the evidence." !d. If the
ALJ' 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). However, "the substantial evidence standard 'presupposes ... a zone of choice
within which the decision makers can go either way, without interference by the courts. An
administrative decision is not subject to reversal merely because substantial evidence would have

4

The statute provides in part: "The magistrate judge shall file his [or her] proposed
findings and recommendations under subparagraph (B) with the court and a copy shall forthwith
be mailed to all parties." 28 U.S.C. § 636(b)(l)(C).
5

The statute provides that, in resolving objections, "[t]he district court 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).
4

supported an opposite decision."' Dunn v. Colvin, 607 F. App'x. 264, 274 (4th Cir. 2015)
(quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988)). "'In reviewing for substantial
evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of the [ALJ]. '" Mastro, 270 F.3d at 176 (first
and second alterations in original) (quoting Craigv. Chater, 76 F.3d 585,598 (4th Cir. 1996)).
B. The ALJ' s Five-Step Evaluation
Because this case involves a decision determining eligibility for benefits, the Court
reviews "whether the ALJ' s fmding ... was reached based upon the correct application of the
relevant law." Craig, 76 F.3d at 589 (citing Coffman, 829 F.2d at 517). The "[d]etermination of
eligibility for social security benefits involves a five-step inquiry." Walls v. Barnhart, 296 F.3d
287,290 (4th Cir. 2002); see 20 C.F.R. §§ 416.920,404.1520.
In step one, the "ALJ asks ... whether the claimant has been working; at step two,
whether the claimant's medical impairments meet the regulations' severity and duration
requirements; [and,] at step three, whether the medical impairments meet or equal an impairment
listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015). Before
proceeding to the fourth step, the ALJ must determine the claimant's RFC, taking into account
all of the claimant's impairments. 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant's RFC is
an assessment of his or her capacity to perform sustained physical and mental activities on a
regular and continuous basis, in spite of his or her limitations. See SSR 96-8p (policy
interpretation for assessing RFC). After determining a claimant's RFC, the ALJ proceeds to step
four and considers whether the claimant could continue performing the work that he or she did in
the past. If the claimant cannot continue to perform his or her prior work, the ALJ proceeds to
step five and determines whether the claimant could perform any other job available in the

5

national economy. 20 C.F.R. §§ 416.905, 416.920; see also Rogers v. Barnhart, 216 F.
App'x 345,347--48 (4th Cir. 2007).
If, at any step of the analysis, the ALJ determines that the claimant is not disabled, the
inquiry must stop and the ALJ must deny the claim. 20 C.P.R. § 404.1520(a)(4). The claimant
bears the burden of proof at steps one through four, but the burden shifts to the Commissioner at
step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.S (1987); Hancock, 667 F.3d at 472-73.

III. Analysis
Keaton raises four objections to the R&R, some of which she improperly seeks to
incorporate from her motion for summary judgment before the Magistrate Judge. 6 (Pl.'s Objs.
R&R 1-2, ECF No. 12.) First, Keaton argues that the R&R erroneously finds that the ALJ's
failure to assign weight to certain medical evidence constitutes harmless error. Second, Keaton
contends that the R&R errs in finding that substantial evidence supports the ALJ' s evaluation of
the medical record and assignment of weight to the opinion evidence. Third, Keaton posits that
the R&R's determination that substantial evidence supports the ALJ's evaluation of Keaton's
credibility constitutes error. Fourth, Keaton avers that the R&R erroneously finds that
substantial evidence supports the ALJ's determination of Keaton's RFC. The Court addresses
each challenge raised by Keaton below.

6

In several places in her Objections, Keaton submits generalized statements indicating
that she "incorporates" and "relies" on arguments from her Summary Judgment memorandum,
rather than presenting those arguments in specific objections. Such statements do not constitute
cognizable objections addressable by the Court and are improper. See United States v. George,
971 F.2d 1113, 1117 (4th Cir. 1992) (explaining that upon submission of a Magistrate Judge's
Report and Recommendation, "the court ... 'shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made" (emphasis added) (quoting 28 U.S.C. § 636(b)(l)); see also Sharp v. Colvin, Civ. No.
3: 14CV340-HEH, 2015 WL 1517416, at *3 (explaining that plaintiff only raised two objections,
therefore the court "will ... cabin its analysis to these issues" (citing George, 971 F.2d at 1117)),
aff'd, 660 F. App'x 251 (4th Cir. 2016). The Court finds that Keaton's summary judgment
arguments not specified and included in her objections were thoroughly addressed in the R&R.
6

A. The ALJ's Failure to Assign Weight to the Medical Opinions of Dr.
Thompson and Dr. Malasitt Constitutes Harmless Error
1. The ALJ Erred by Failing to Assign Weight to Drs. Thompson
and Malasitt
An ALJ must assign weight to every medical opinion and provide reasons for the weight
given. Tanner v. Comm 'r ofSoc. Sec., 602 F. App'x 95, 100 (4th Cir. 2011); Gordon v.

Schweiker, 725 F.2d 231, 235-36 (4th Cir. 1984); Stawls v. Califano, 596 F.2d 1209, 1213 (4th
Cir. 1979); 20 C.P.R. 404.1527(c). Assigning weight to such evidence shows that the ALJ has
considered the evidence. See Gordon, 725 F.2d at 235-36 (citing Arnold v. Sec y ofHealth,

Educ. and Welfare, 567 F .2d 25 8, 259 (4th Cir. 1977) ("'The courts ... face a difficult task in
applying the substantial evidence test when the [ALJ] has not considered all relevant
evidence'")). Unless an ALJ assigns weight to all relevant medical opinions in the record, a
reviewing court '"cannot determine if the findings are unsupported by substantial evidence."'

Tanner, 602 F. App'x at 100 (quoting Gordon, 725 F.2d at 235).
Because the record contains the medical opinions of Drs. Thompson and Malasitt,
(R. at 936-42, 961-1000), the ALJ had a duty to assign weight to them. This Court finds that the
ALJ's failure to explicitly afford weight to the opinions of Dr. Thompson and Dr. Malasitt
constitutes error. (R&R at 10-11.) This does not end the Court's analysis.

2. The ALJ's Error in Failing to Assign Weight to Drs. Thompson and
Malasitt's Opinions Constitutes Harmless Error
a.

The Harmless Error Doctrine

In order to merit remand or reversal, an ALJ' s error must cause harm, Shinseki v.

Sanders, 556 U.S. 396, 411 (2009), 7 and not just a possibility of prejudice, McLeod v. Astrue,
7

The United States Court of Appeals for the Fourth Circuit first recognized harmless
error in the context of social security disability determinations by published opinion in Mascio,
780 F .3d at 639 (4th Cir.20 15), however, it applied the doctrine in several unpublished cases
prior to Mascio. See, e.g., Tanner, 602 F. App'x at 101; Garner, 436 F. App'x at 225; see also
7

640 F.3d 881, 888 (9th Cir. 2010). "[R]eversal is not required when the alleged error 'clearly
has no bearing on the procedures used or the substance of the decision reached.'" Ngarurih v.

Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004) (alteration in original) (quoting Mass. Trs. ofE.
Gas & Fuel Assocs. v. United States, 377 U.S. 235,248 (1964)). The party alleging harmfulness
of an error "carries the burden of showing that prejudice resulted." Shinseki, 556 U.S. at 409;

see also McLeod, 640 F.3d at 887-88 (applying harmless error standard and burden adopted in
Shinseki, explaining that "mere probability [of harm] is not enough").
A reviewing court must give "[a]n estimation of the likelihood that the result would have
been different." Shinseki, 556 U.S. at 411. It is impractical and unnecessary to reverse absent a
finding of a "substantial likelihood" of harm. Tanner, 602 F. App'x at 101 (holding that failure
to assign weight to medical source statement did not constitute reversible error requiring
remand where the ALJ considered the medical source statement and the ALJ' s finding of
non-disability would not differ on remand; also noting that remand would needlessly expend
administrative resources).

b.

Keaton Fails to Carry Her Burden to Show That the Error
was Harmful

Upon review, the Court finds that the record and circumstances demonstrate no harm, nor
has Keaton met her burden to establish a "substantial likelihood" of harm. McLeod, 640 F.3d
at 887-88. When a record shows that the ALJ has considered all relevant medical opinions that
are consistent with the record and evidence, the failure to assign weight to a medical opinion can
constitute harmless error. See Tanner, 602 F. App'x at 100-01 (finding failure to assign weight
to medical source not harmful where RFC assessment clearly considered report which was
consistent with other evidence). But see Arnold, 567 F.2d at 259 (finding that the ALJ

Batchelor v. Colvin, 962 F. Supp. 2d 864, 867-68 (E.D.N.C. 2013) (applying the Fourth
Circuit's holding in Garner to conclude the ALJ's error was harmless).
8

committed harmful error by incorrectly categorizing medical records as irrelevant and failing to
consider them, explaining that the ALJ must consider all relevant evidence). Despite the ALJ's
failure to assign weight to the opinions of Drs. Thompson and Malasitt, the record plainly shows
that the ALJ reviewed and considered them. (R. at 40; R&R at 12.) As explained more fully
below, the ALJ integrated these doctors' orthopedic limitations for Keaton in his RFC
determination, 8 (R. at 40; R&R at 13), and accounted for and relied upon their orthopedic
evidence and opinions in making a finding ofnon-disability. 9 (R. at 40; R&R at 13.)
Nothing in the record suggests that the ALJ marginalized or rejected the opinions of Drs.
Thompson and Malasitt. Rather, the ALJ accounted for the findings and opinions from Drs.
Thompson and Malasitt regarding Keaton's upper extremity impairments in her left hand. 10 The
ALJ cited and relied on Dr. Thompson's and Dr. Malasitt's records to reach conclusions in his
decision. For example, the ALJ noted that: (1) Keaton's condition is not expected to improve,
(R. at 40, 941, 967); (2) there is numbness of the left hand, (R. at 40, 941); (3) there is
cervical/thoracic tenderness, (R. at 40, 967); and, (4) Keaton's cervical/thoracic range of motion
is limited, (R. 40, 967). The numerous references by the ALJ to Dr. Thompson's and Dr.
Malasitt' s portions of the record demonstrate that the ALJ considered and relied upon their
opinions. (R&R at 10-13.)

8

The ALJ frequently cites to exhibits 25F and 27F as a basis for the RFC. These exhibits
include the records ofDrs. Thompson and Malasitt, respectively. (R. at 936-42, 961-1000.)
9

In the RFC, the ALJ does not identify these medical professionals-or any other
medical professional-by name. Instead, the ALJ cites reports and opinions in the record
without specifically naming a doctor.
10

The ALJ directly discussed the orthopedic conditions of Keaton's left hand as
evidenced by the numerous references to the record of these orthopedic physicians.
(R. at 936-42; R&R at 9-10.) Upon review of the medical records, the Court cannot find that
the ALJ mischaracterized the evidence or opinion of Dr. Frankenhoff or Dr. Thompson.

9

Keaton argues that the ALJ's failure to assign weight to the opinions of Dr. Thompson
and Dr. Malasitt requires this Court to speculate as to whether substantial evidence supports the
ALJ's findings. (Pl.'s Objs. R&R 3.) The Court disagrees. An ALJ error does not trigger
automatic reversal nor does it demonstrate, in and of itself, how the error caused harm or
changed the result. Tanner, 602 F. App'x at 100-01 (finding remand would likely not alter the
prior finding of non-disability, despite the ALJ's failure to assign weight, because the ALJ
considered the opinion); see also McLeod, 640 F.3d at 888 (placing the burden on the
challenging party to establish that the error caused harm). The ALJ' s decision makes it clear that
he reviewed and considered the orthopedic evidence of record and accounted for Dr. Malasitt's
and Dr. Thompson's medical opinions. (R&R at 13.) Notwithstanding the ALJ's failure to
afford them weight, the ALJ' s consideration of these opinions makes it clear that doing so would
not have altered the ALJ' s ultimate finding of non-disability. Where harmlessness is clear,
remand is not appropriate. McLeod, 640 F.3d at 888. Because Keaton is unable to demonstrate
harm or a substantial likelihood that remand would change the outcome, McLeod, 640 F.3d at
888, this Court will overrule this objection.

B. The ALJ Properly Assigned Weight to the Opinions of Drs. CampbeU and Brvan
Keaton argues that the R&R errs in finding that the ALJ "assigned appropriate weight" to
the opinions of Dr. Campbell and Dr. Bryan. (Pl.'s Objs. R&R at 3.) A reviewing court should
not disturb the ALJ' s decision "absent some indication that the ALJ had 'dredged up specious
inconsistencies,' or failed to give a sufficient reason for the weight afforded a particular
opinion." Dunn, 607 F. App'x. at 267 (quoting Scivally v. Sullivan, 966 F. 2d 1070, 1077 (7th
Cir. 1992)). The Court finds no "specious inconsistencies" or failure by the ALJ regarding the
weight afforded to Dr. Campbell and Dr. Bryan. (R&R at 15-17.)

10

Under the "treating physician rule," a treating physician's opinion "on the nature and
severity of the claimed impairment 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 record." Mastro, 270 F.3d at 178 (citing 20 C.F.R.
§ 416.927(d)(2)). However, '"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."' !d. (quoting Craig, 76 F.3d at 590). It is not enough that some evidence exists to
support the treating physician's opinion; if that opinion is inconsistent with other substantial
evidence, the ALJ may give it less weight, as was the case here. !d.
Dr. Campbell's April2004 report restricted Keaton to lifting no more than ten pounds,
noted that she could not withstand "prolong[ed]" sitting, standing, or swimming, and limited her
to "no excessive use of arm and wrist." (R. at 288; R&R at 14.) Dr. Campbell indicated that
Keaton could not use her hands for simple grip or power grip and had limited fine manipulation.
(R. at 289; R&R at 14.) In addition to being prepared almost eight years before Keaton's AOD,
Dr. Campbell's report contains vague terminology inconsistent with the objective findings of Dr.
Srivastava made earlier that same year. (R&R at 15.) Dr. Srivastava examined Keaton and
found she had "flexion and extension [that was] painless and full-range," and she presented
"5/5 motor power in shoulder, elbow, and hand muscles." (R. at 306.) Although Dr. Srivastava
made her fmdings eight months prior to Dr. Campbell's report, no symptoms or intervening
factors exist in the record that would give rise to this significant physical decline in such a brief
period of time. Because Dr. Campbell's opinion was inconsistent with other substantial
evidence, the ALJ did not err in according it less weight. Mastro, 270 F .3d at 178; see R&R
at 15-16.

11

Regarding the ALJ's findings for Dr. Bryan, the ALJ discounted only Dr. Bryan's
November 21,2012 note. 11 (R. at 42; R&R at 16-17.) In the note, Dr. Bryan opined that Keaton
should "remain out of work until ... completion of physical therapy." (R. at 622.) Statements
specifying the ability of a person to work are legal conclusions reserved for the Commissioner
and are outside the scope of the medical conclusions by medical experts or treating physicians.
Morgan, 142 F. App'x at 722 (citing 20 C.F.R. § 404.1527(d)(l) for the proposition that
statements by the treating physician that a claimant is "disabled" or "unable to work," are legal
conclusions reserved for the Commissioner). (R&R at 17.) Therefore, the ALJ did not err in
assigning less weight to Dr. Bryan's November 21, 2012 note.
The ALJ found that the opinions of Drs. Campbell and Bryan were not wholly consistent
with the substantial evidence upon which he relied. The R&R meticulously examines the record
and properly concludes that substantial evidence supports the ALJ' s assignment of weight to Drs.
Bryan and Campbell. (R&R at 15-16.) The district court does not have discretion to disturb the
weight the ALJ afforded to Drs. Campbell and Bryan because the ALJ provided sufficient
reasons to support his conclusions. Mastro, 270 F.3d at 176. Accordingly, the Court fmds that
the ALJ gave the appropriate weight to the medical opinion of Dr. Campbell and to Dr. Bryan's
November 21,2012 note.
C. Substantial Evidence Supports the ALJ's Evaluation of Keaton's Credibility
Keaton contends that substantial evidence does not support the ALJ' s finding regarding
her credibility. (Pl.'s Objs. R&R at 2.) When an individual's complaints regarding the limiting
effects of his or her disability do not correlate with objective medical evidence, the ALJ must
11

VCU Health Systems authorized release of Dr. Bryan's November 21,2012 report on
January 17,2013. (R. at 622.) Although the ALJ mistakenly identified the document as Dr.
Bryan's "January 17, 2013 statement," he properly identified this as exhibit 19F. (R. at 42.) The
Magistrate Judge correctly listed the date in his R&R as "Dr. Bryan's November 21 note."
(R&R at 17.)
12

make an assessment of the individual's credibility based on the entire case record. SSR 96-7p. 12
Credibility is an important factor in determining the claimant's RFC. To determine a claimant's
RFC, the ALJ must follow a two-step process. Craig, F.3d at 549; 20 C.P.R.§§ 404.1529(a),
416.929(a); SSR 96-7p. First, the ALJ must determine whether medically-determinable mental
or physical impairments could reasonably be expected to produce the alleged symptoms. Craig,
76 P.3d at 549; 20 C.P.R.§§ 416.929(b}-(c); SSR 96-7p. Ifthis showing is made, the ALJ, at
step 2, evaluates the claimant's statements regarding the intensity, persistence, and limiting
effects of his or her symptoms to determine the extent to which the symptoms limit his or her
ability to do basic work activities. Craig, 76 F.3d at 595; 20 C.P.R.§ 416.929(c)(1); SSR 96-7p.
Under the regulations, this evaluation must take into account not only the claimant's statements
about his or her pain, but also "all the available evidence," including the claimant's medical
history, symptoms, laboratory findings, objective medical evidence of pain, and any other
evidence relevant to the severity of the impairment, including evidence of the claimant's daily
activities, specific descriptions of pain, and any medical treatment utilized to alleviate the pain.

Craig, 76 F.3d at 595; 20 C.P.R. §§ 416.929(c)(l}-(3), 404.1529(c)(l)-(3).
The Fourth Circuit and courts within this district repeatedly have held that an ALJ's
credibility determinations should be given "great weight" because the ALJ "had the opportunity
to observe the demeanor and determine the credibility of the claimant." Shively v. Heckler,
739 F.2d 987, 989 (4th Cir. 1984) (citing Tyler v. Weinberger, 409 F. Supp. 776 (E.D.
Va. 1976)); see also Gullace v. Astrue, No. I :11cv0755, 2012 WL 691554, at *23 (E.D. Va. Feb.
13, 2012); Parker v. Astrue, No.3: 10cv558, 2011 WL 3585373, at *5 (E.D. Va. July 28, 2011).
Absent "exceptional circumstances," the reviewing court must accept the ALJ's credibility
12

Effective as ofMarch 28,2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p
effectively removes the use of the term "credibility" but does not alter the substantive analysis.
Because the ALJ was held to the standard and language ofSSR 96-7p, the Court refers to the
prior SSR and utilizes the credibility language applicable at the time to this case.
13

determination. Exceptional circumstances exist when "a determination is unreasonable,
contradicts other findings of fact, or is based on an inadequate reason or no reason at all."
Eldeco, Inc. v. NLRB, 132 F.3d 1007, 1011 (4th Cir. 1997) (citations and internal quotation

marks omitted).
Upon review of the record, the Court will accept the ALJ's credibility findings because
no exceptional circumstances exist indicating that the ALJ's credibility determination is
inconsistent with other findings of fact or that it rests on an inadequate reason. The ALJ
thoroughly examined three areas to reach his credibility determination: (1) Keaton's inconsistent
statements; (2) Keaton's non-compliance with medication protocols; and, (3) Keaton's
conservative treatment regimen. (R&R at 17-28.) The Court discusses each in turn.

1. Keaton's Inconsistent Statements
In assessing subjective complaints of pain, the ALJ must determine whether an
underlying medically-determinable physical or mental impairment exists that could reasonably
produce the individual's pain or related symptoms. Craig, 76 F.3d. at 594-95. Next, the ALJ
must evaluate the credibility of the claimant's statements of intensity and persistence of pain. !d.
at 591, 595. Here, the ALJ found that Keaton's medical impairments could reasonably cause
pain, but determined that her statements of intensity and persistence lacked credibility. (R. at
38-42; R&R at 27-28.) The ALJ appropriately relied on Keaton's Function Report to make
some of his credibility findings.
The Function Report indicated that Keaton prepared meals two to three times a week,
played cards and worked on puzzles weekly, and used the phone and computer daily.
(R. at 262-64; R&R at 27.) It also indicated that she did laundry, ironed, mopped, swept, and

dusted on a weekly basis. (R. at 262; R&R at 27.) The ALJ found that Keaton's ability to

14

engage in such a wide variety of activities, including activities requiring fme manipulation, was
inconsistent with the intensity and persistence of pain and other symptoms she claimed.
(R. at 38-42; R&R at 28.) This Court will not disturb the reasonable fmding of the ALJ
regarding Keaton's inconsistent statements.

2. Keaton's Non-compliance with Medical Treatment
A claimant's non-compliance with medical treatment can undermine the claimant's
credibility regarding the severity of his or her symptoms. Dunn, 607 F. App'x. at 267; see also
SSR 96-7p. Keaton demonstrated frequent non-compliance with medications. (R&R at 20-24.)
The ALJ determined that Keaton's claims of severity and persistence lacked credibility in part
because she did not take her medications as prescribed, instead taking them on an as-needed
basis, or not at all. (R. at 41, 881 ). In one report, a physician questioned whether Keaton was
complying with her blood pressure regimen, noting Keaton's high and seemingly uncontrolled
blood pressure. (R. at 882.) Keaton consistently failed to comply with Dr. Bryan's medical
recommendation that she cease smoking. (R. at 414, 864; R&R at 22.) Despite conclusions by
Keaton's orthopedists that "physical therapy is going to help her a lot," (R. at 941), and is
"probably the most important thing for her," (R. at 967), Keaton did not appear for regularlyscheduled physical therapy sessions and was discharged for non-attendance after only three
sessions. (R. at 556; R&R at 22). The Court finds the ALJ's credibility finding of Keaton's noncompliance with medical treatment reasonable. (R&R at 20-24.)

3. Keaton's Conservative Treatment
Keaton alleges that the ALJ improperly considered the nature of her treatment in his
credibility finding and that his finding lacks the support of substantial evidence. An ALJ may
consider the nature of treatment when determining credibility, as conservative treatment may be
an indicator that the claimant is magnifying the reported intensity or persistence of pain or other
15

symptoms. Dunn, 607 F. App'x. at 273; 20 C.F.R. §§ 404.1529(c)(3)(iv)-(v). When an ALJ
finds that a claimant's "treatment was not as aggressive as one would reasonably think would be
employed if the alleged disability were actually that severe," the ALJ may conclude such
conservative treatment "bears on the claimant's credibility." Dunn, 607 F. App'x. at 274-75.
Even recognizing Keaton's cubital tunnel surgery and her cardiac catheterization, the
ALJ characterized Keaton's medical treatment as "conservative" because Keaton's treatment
consisted largely of medication and physical therapy. (R. at 40; R&R at 25.) Despite substantial
radiological and MRI testing for her back and neck over the years, Keaton's physicians did not
recommend any invasive treatment, indicating that Keaton's conditions were not so severe as to
warrant extreme corrective measures. (R. at 502, 683-97, 786, 934-36, 940--41, 967; R&R
at 25.) Although Keaton pursued a more invasive treatment regimen for her left hand, the ALJ
clearly considered her surgery alongside the many areas and types of treatment she underwent as
a whole. Additionally, Keaton's non-compliance with medication and physical therapy clearly
demonstrates that she did not experience such intense pain that she aggressively sought and
followed through with all treatments available to her. Reviewing the record, substantial evidence
supports the ALJ's characterization of Keaton's treatment as "conservative." (R&R at 25.)
D. Substantial Evidence Supports the ALJ's Determination of Keaton's RFC
Keaton's entire argument encompassing her objection that "substantial evidence does not
support the ALJ fmding regarding Plaintiffs RFC" consists of the following:
As to the argument that substantial evidence does not support the ALJ finding
regarding Plaintiffs RFC and any other remaining issues pursuant to Plaintiffs
objections noted herein, Plaintiff has previously provided argument in her
Memorandum. Plaintiff relies upon that argument.
(Pl.'s Objs. R&R, ECF 12 at 7.)
As explained in note 6, supra, "the court ... 'shall make a de novo determination of
those portions ofthe report or specified proposed findings or recommendations to which

16

objection is made" 28 U.S.C. § 636(b)(l) (emphasis added). Here, Keaton limited her RFC
objections to findings relating to credibility and the nature of treatment. The Court addressed
those objections in part III., C., supra. Absent any specific argument regarding the RFC
determination, the Court has no additional RFC analysis to review de novo. 13

IV. Conclusion
Substantial evidence supports the ALJ' s factual findings, which were fully supported by
the record and were not affected by the ALJ's harmless error. This Court has thoroughly
examined the record and overrules Keaton's objections and adopts the Report and
Recommendation of the Magistrate Judge in its entirety. Accordingly, Plaintiff's Motion for
Summary Judgment will be denied, Defendant's Motion for Summary Judgment will be granted,
and the final decision of the Commissioner will be affirmed.
An appropriate Order shall accompany this Memorandum Opinion.

Date:

3-~-11

Richmond, Virginia

13

In the R&R, the Magistrate Judge thoroughly and adequately analyzed the argument in
Keaton's summary judgment motion and memo challenging the ALJ's RFC determination.
(R&R at 28-32.)
17