Martin v. Astrue

Filing 22

OPINION AND ORDER denying 15 Motion for Summary Judgment and Granting 17 Motion for Summary Judgment. Signed by Judge James P. Jones on 3/13/14. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
ROBERT HARVEY MARTIN,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,1
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 1:12CV00084
OPINION AND ORDER
By: James P. Jones
United States District Judge

E. Craig Kendrick, Browning, Lamie & Gifford, P.C., Abingdon, Virginia, for
Plaintiff; Nora Koch, Acting Regional Chief Counsel, Region III, Eda Giusti,
Assistant Regional Counsel, and Rafael Melendez, Special Assistant United States
Attorney, Office of the General Counsel, Social Security Administration,
Philadelphia, Pennsylvania, for Defendant.
In this Social Security disability case, I affirm the decision of the
Commissioner.

I
Plaintiff Robert Harvey Martin filed this action challenging the final decision
of the Commissioner of Social Security (the “Commissioner”) denying his claim for
supplemental security income benefits (“SSI”) under Title XVI of the Social Security
Act (“Act”), 42 U.S.C.A. §§ 1381-1383f (West 2012 & Supp. 2013). Jurisdiction of
this court exists under 42 U.S.C.A. § 1383(c)(3).

1 Carolyn W. Colvin became the Acting Commissioner on February 14, 2013, and is
substituted for Michael J. Astrue as the defendant in this suit pursuant to Federal Rule of
Civil Procedure 25(d).

Martin filed for SSI with the Social Security Administration on February 17,
2009. After preliminary denials of his claims, he obtained a hearing before an
administrative law judge (“ALJ”) on January 19, 2011, at which he was represented
by counsel and during which he testified along with an impartial vocational expert,
James Williams. On March 11, 2011, the ALJ issued a written decision finding that
Martin was not disabled under the Act. Martin requested review by the Social
Security Administration’s Appeals Council. The Appeals Council denied his request
for review on September 25, 2012, thus making the ALJ’s decision the final decision
of the Commissioner. Martin then filed this action, seeking judicial review of the
Commissioner’s final decision.
The parties filed cross motions for summary judgment, which were briefed
and thereafter orally argued by counsel on March 4, 2014. The case is now ripe for
decision.

II
At the time of the ALJ’s decision, Martin was 46 years old.
school until the ninth or tenth grade.

He attended

He last worked for pay in 1996 as a

construction assistant superintendent building McDonald’s restaurants.

In his

written decision, the ALJ found that Martin had a severe impairment consisting of
a “history of kidney stones.” (R. at 21.) The ALJ reviewed Martin’s medical history
and the evidence presented at the hearing and set forth the reasons for his factual
findings.

He found that Martin did not have an impairment or combination of

-2 

impairments that met or medically equaled a listed impairment,2 had no past
relevant work, and that he had the residual functional capacity to perform
sedentary work.

Based upon the testimony of the vocational expert, the ALJ

determined that Martin was capable of performing jobs existing in significant
numbers in the national economy.
It is contended in the present case that the ALJ erroneously resolved the
evidence in finding Martin not disabled. In particular, it is argued that the ALJ (1)
should not have accepted opinions of State Agency consulting physicians who stated
opinions after reviewing Martin’s medical records but who had not examined him;
(2) failed to adequately explain his reasons for finding Martin only partially
credible; (3) should not have relied upon Martin’s activities of daily living as
relevant evidence; (4) should not have relied upon Martin’s failure to follow up on a
referral to a specialist by his primary care physician; (5) erred in finding Martin’s
mental impairments to be non-severe; (6) failed to consider the application of a
Listed Impairment relating to impairments resulting from chronic renal disease;
and (7) failed to obtain consultative evaluations of Martin for his kidney stones and
his mental issues.

2 The Listing of Impairments is found in 20 C.F.R. pt. 404, subpt. P, app. 1 (2013),

and describes impairments for each of the major body systems that the Social Security
Administration considers to be severe enough to prevent an individual from doing any
gainful activity, regardless of his or her age, education, or work experience. See 20 C.F.R. §
416.920(d) (2013).

-3 

III
The plaintiff bears the burden of proving that he is under a disability.

Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

The standard for

disability is strict. The plaintiff must show that his “physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national
economy . . . .” 42 U.S.C.A. § 1382c(a)(3)(B).
In assessing disability claims, the ALJ applies a five-step sequential
evaluation process. The ALJ considers whether the claimant: (1) has worked during
the alleged period of disability; (2) has a severe impairment; (3) has a condition that
meets or equals the severity of a listed impairment; (4) could return to his past
relevant work; and (5) if not, whether he could perform other work present in the
national economy. See 20 C.F.R. § 416.920(a)(4) (2013). The fourth and fifth steps
of the inquiry require an assessment of the claimant’s residual functional capacity,
which is then compared with the physical and mental demands of other work
present in the national economy. See 20 C.F.R. § 416.920(a)(4)(iv), (v).
In accordance with the Act, I must uphold the ALJ’s findings if substantial
evidence supports them and the findings were reached through the application of
the correct legal standard.

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

Substantial evidence means “such relevant evidence as a reasonable mind might

-4 

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971) (internal quotation marks and citation omitted). Substantial evidence is
“more than a mere scintilla of evidence but may be somewhat less than a
preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). It is the
role of the ALJ to resolve evidentiary conflicts, including inconsistencies in the
evidence. Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976). It is not
the role of the court to substitute its judgment for that of the Commissioner. Hays

v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
I have carefully considered the record evidence and the parties’ arguments
and I conclude for the following reasons that the ALJ’s decision in this case is
supported by substantial evidence and was reached through application of the
correct legal standards.

IV
The plaintiff’s contentions will be discussed in order.
NON-EXAMINING PHYSICIANS’ OPINIONS.
The ALJ in this case considered the opinions of State Agency consulting
physicians who reviewed Martin’s medical records but who did not examine him.
Martin contends that the ALJ erred in giving weight to those opinions because they
were rendered without the opportunity to examine him and without the benefit of
more up-to-date medical records.

-5 

Although the Social Security regulations provide that more weight is
generally to be given to the opinion of an examining physician over the opinion of a
non-examining physician, 20 C.F.R. § 416.927(c)(2) (2013), the opinion of a nonexamining physician can be relied upon by an ALJ in a Social Security disability
case “when it is consistent with the record,” Smith v. Schweiker, 795 F.2d 343, 346
(4th Cir. 1986), and “can constitute substantial evidence to support a finding of
nondisability,” Throckmorton v. U.S. Dep’t of Health & Human Servs., 932 F.2d
295, 299 (4th Cir. 1990).
One of the State Agency consultant’s reports relied upon by the ALJ was
dated in 2008. That physician stated that Martin “has described daily activities
that are not significantly limited in relation to his alleged symptoms.

The

treatment for his impairments has been essentially routine and conservative in
nature . . . . The medical records reveal that the medications have been relatively
effective in controlling his symptoms.” (R. at 270.)

While the plaintiff complains

that reliance upon the opinions of this physician was improper since there were
later medical reports that were unreviewed, none of the later reports necessarily
cast doubt on the accuracy of these opinions. Martin clearly has a long-standing
history of kidney stones, his primary medical complaint. The factual question for
the ALJ was whether this condition rendered him disabled. In light of the paucity

-6 

of any other medical evidence contradicting the non-examining physicians’ opinions,
the ALJ did not err in relying on those opinions.3
PLAINTIFF’S CREDIBILITY.
The ALJ found that Martin was only “partially credible.” (R. at 28.) In
particular, he found that Martin did not have the limitations that he claimed.
Martin attacks the ALJ’s findings in this regard and in particular his determination
that Martin presented an “unpersuasive appearance and demeanor while testifying
at the hearing.” (R. at 29.) While the ALJ did not elaborate as to the particulars of
Martin’s appearance and demeanor that led to this finding, he emphasized that this
observation was only one of many reasons supporting his credibility finding.
Indeed, the ALJ detailed other reasons why he found Martin only partially credible,
including the inconsistencies between Martin’s description of the severity of his
symptoms and the medical evidence of record. I do not find that the ALJ erred in
discounting Martin’s testimony as he did.
ACTIVITIES OF DAILY LIVING.
It is contended that the ALJ should not have relied upon Martin’s activities of
daily living as shown by the record, in making his decisions concerning Martin’s
credibility and disability.

3

Two later evaluations by State Agency non-examining physicians, in June and
December of 2009, are consistent with the 2008 conclusions. (R. at 76, 82.) Both were also
relied upon by the ALJ. (R. at 27.) As the ALJ noted in his decision, “The record does not
contain any opinions from treating or examining physicians indicating that the claimant
has limitations greater than those determined in this decision.” (R. at 29.)

-7 

Martin testified before the ALJ that he was limited in his daily life activities.
The ALJ found that he could not consider that testimony as “strong evidence” of
disability because such claimed limitations were unsupported by the “relatively
weak medical evidence.” (R. at 28.)

This was a legitimate factual determination

by the ALJ that does not lack substantial evidence.4
FAILURE TO SEEK TREATMENT.
Martin failed to follow up on a physician’s recommendation that he see a
specialist at the University of Virginia hospital for his kidney stones condition.
Martin testified that he had not followed this recommendation because he had “no
way of getting there” since his father was elderly and both his girlfriend and adult
daughter worked.5 (R. at 50.)

The ALJ noted in his decision that Martin’s failure

to follow this recommendation “suggests that the symptoms may not have been as
serious as has been alleged.” (R. at 29.)
I find that the ALJ’s inference based upon these facts is not a ground for
reversing the administrative determination.

At most, it was only one of many

factors relied upon by the ALJ in weighing the evidence against a finding of
disability.

4

The ALJ did note that in any event, Martin admitted to watching television and
reading, visiting with his adult daughters, playing video games, and checking on his elderly
father frequently. (R. at 26.) While there clearly may be a difference between performing
daily personal activities and regular work duties, a Social Security claimant’s routine nonwork activities of life may support a finding that a residual functional capacity to work
exists. See Yost v. Barnhart, 79 F. App’x 553, 555 (4th Cir. 2003) (unpublished).
Counsel for the plaintiff represents that a trip to the University of Virginia
hospital from Martin’s home would have taken four to five hours each way. (Pl.’s Brief 5.)

5

-8 

MENTAL IMPAIRMENTS.
The plaintiff contends that the ALJ erred at step two of the sequential
evaluation by finding that Martin’s claimed mental impairments were not “severe”
as defined in the Social Security regulations. While Martin complained that his
depression and anxiety prevented him from working, the ALJ found that all alleged
impairments other than his history of kidney stones were non-severe, “[A]s they
have been responsive to treatment and/or cause no more than minimally
vocationally relevant limitations,” citing Social Security Ruling 85-28, 1985 WL
56856. (R. at 21.)
I find that there was substantial evidence to support this finding.

In his

lengthy discussions of Martin’s claims of anxiety and depression, the ALJ noted
that while Martin had seen a licensed clinical social worker on occasion, the
provider, Crystal Burke, noted in her treatment record of September 1, 2010, that
Martin had not been seen since April, and only once before that time, and that
Martin was “unsure why he has not kept any appointments with [his] primary care
or with this clinician.” (R. at 300.) In her earlier treatment note of April 12, 2010,
Burke noted that “[Martin] does not appear especially depressed. He does appear to
have some anxiety.” (R. at 301.)

These treatment notes, together with the State

Agency physicians’ evaluation of Martin’s medical history, and the other evidence of
record, support the ALJ’s determination that Martin’s mental impairments were
not severe.

-9 

LISTED IMPAIRMENT.
The plaintiff contends that Listed Impairment 6.00 should have been
considered by the ALJ in order to find him disabled.

Listed Impairment 6.00,

related to genitourinary impairments, includes renal dysfunction due to various
conditions. 20 C.F.R. pt. 404, subpt. P, app. 1 § 6.00(A)(2) (2013).   In fact, the ALJ
did consider this Listed Impairment and found that the evidence did not support
that listing.

(R. at 21.) I find that the ALJ’s determination was supported by

substantial evidence.
CONSULTATIVE EXAMINATIONS.
It is argued on Martin’s behalf that the ALJ should have ordered consultative
examinations by medical specialists concerning his kidney stones and mental
impairments, in order to properly adjudicate the case. I disagree.
An ALJ may order the purchase of a consultative examination when the
available evidence is insufficient to determine whether the claimant is disabled. See
20 C.F.R. § 416.919a(b) (2013). However, in the present case, for the reasons that I
have set forth in this Opinion, the ALJ was able to make the disability
determination based upon the evidence of record. To the extent that there were
inconsistencies in the evidence, I find that they did not exist to the extent that the
ALJ abused his discretion in declining to seek further medical evidence. See Jones

v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987) (“[F]ull inquiry does not require a
consultative examination at government expense unless the record establishes that

-10 

such an examination is necessary to enable the administrative law judge to make
the disability decision”) (internal quotation marks and citations omitted).

V
For the foregoing reasons, the plaintiff’s Motion for Summary Judgment
(ECF No. 15) is DENIED, and the defendant’s Motion for Summary Judgment (ECF
No. 17) is GRANTED. A separate judgment will be entered affirming the
Commissioner’s final decision denying benefits.
It is so ORDERED.

ENTER: March 13, 2014

/s/ James P. Jones

United States District Judge

-11